THE  MEDICAL  PROFESSION 


AND  THE 

COMMONWEALTH. 


By  FRANK  WINTHROP  DRAPP^R,  M.D. 


The  Annual  Discourse  delivered  before  the  Massachusetts  Medical 
Society,  June  8,  1892. 


BOSTON : 

DAVID  CLAPP  & SON,  PRINTERS,  115  HIGH  ST. 
1 8 9 2. 


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THE  MEDICAL  PROFESSION  AND  THE 
COMMONWEALTH. 


Mr.  President  and  Fellows 

of  the  Massachusetts  Medical  Society  : 

The  father  of  modern  lexicographers  defines  a 
physician  as  “ one  who  professes  the  art  of  healing.” 
This  definition,  even  with  its  evident  limitations, 
accords  with  the  popular  idea  of  the  doctor’s  proper 
place  in  the  world’s  affairs;  he  is  of  value  as  a 
prescriber  of  remedies  for  sickness.  His  character- 
istic business  is  the  cultivation  of  therapeutic  skill. 
To  this  end,  medical  education  is  largely  directed, 
with  its  clinical  features  made  prominent.  To  the 
attainment  of  this  result,  hospitals  lend  their  aid 
and  specialties  have  been  organized  in  such  num- 
bers and  variety  as  to  confound  the  traditions  of 
conservatism.  All  this  preparation  and  special- 
ism fairly  represent  the  current  notion  that  the  art 
of  medicine,  rather  than  medical  science,  is  the 
physician’s  specific  domain.  How  to  defy  success- 
fully and  to  conquer  effectively  the  foe  of  the 
household, — this  is  held  to  be  the  main  purpose 
of  our  profession,  our  chief  reason  for  being. 
“ They  that  be  whole  need  not  a physician,  but  they 
that  are  sick.” 

But  while  the  medical  and  surgical  practitioner 
illustrates  in  his  clinical  round  of  duty  his  prin- 
cipal function,  there  are  other  relations  in  his 


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4 


THE  MEDICAL  PROFESSION 


experience  to  which  his  profession  necessarily  ex- 
poses him.  Some  of  these  are  imperative  and  can- 
not be  evaded;  others  are  voluntary  but  are  full 
of  noble  possibilities;  all  of  them,  properly  used, 
give  increased  value  and  dignity  to  our  professional 
vocation.  In  the  discharge  of  the  distinguished 
dut}'  which  places  me  in  your  presence  at  this  time, 
I shall  endeavor  to  make  clear  the  true  attitude 
which  our  profession  should  maintain  toward  some 
of  these  external  conditions.  I ask  your  indulgent 
attention  to  a study  of  the  relations  which,  as  phy- 
sicians, we  hold  toward  the  Commonwealth. 

Our  obligations  to  the  State  derive  added  signi- 
ficance from  the  circumstances  attending  the  incor- 
poration of  the  Society  of  which  we  are  the  Fellows. 
Our  organic  existence  began  in  the  troublous  times 
at  the  close  of  the  revolutionary  war,  when  the 
more  hopeful  felt  sure  that  they  saw  the  dawn  of 
an  independent  nation,  but  did  not  dream  of  the 
difficulties  and  delays  that  were  to  postpone  for 
nearly  a decade  the  establishment  of  constitutional 
government.  The  seat  of  military  operations  had 
been  carried  southward,  leaving  ISTew  England 
without  serious  apprehension  of  the  further  presence 
of  hostile  forces.  Yorktown  was  the  point  upon 
which,  during  the  early  autumn  of  1781,  attention 
was  centred,  and  here  the  war  reached  its  trium- 
phant climax.  Meanwhile,  here  in  Massachusetts, 
civil  affairs,  though  still  unsettled,  had  begun  to 
take  permanent  shape.  For  a year,  the  people 
had  been  living  under  a constitution  of  their  own 
devising,  an  instrument  of  solid  framework,  the 


AND  THE  COMMONWEALTH. 


prototype  and  model  of  many  others  constructed 
after  it. 

It  was  at  this  time,  when  the  national  government 
was  in  revolutionary  instability  and  our  own  Com- 
monwealth was  in  its  infancy,  that  a few  medical 
men,  chiefly  resident  in  Boston,  saw  the  desirability 
of  an  association  that  should  bring  qualified  prac- 
titioners into  closer  relations  for  their  own  benefit 
and  for  the  good  of  the  public.  No  doubt  there 
was  ample  ground  for  this  feeling.  The  exigen- 
cies of  the  war  then  closing  had  called  many  Mas- 
sachusetts physicians  into  the  public  service,  where 
they  met  associates  from  other  States  and,  with 
them,  by  the  intercourse  thus  available,  were  stim- 
ulated to  discuss  the  needs  of  the  profession  and 
were  led  into  a community  and  cohesion  of  in- 
terests not  possible  otherwise.  Out  of  this  oppor- 
tunity and  experience  grew  a purpose  to  secure 
order  in  place  of  medical  chaos.  Medical  know- 
ledge was  limited  and  the  facilities  for  obtaining 
it  were  difficult;  more  difficult  in  New  England, 
indeed,  than  in  other  sections  of  the  country. 
There  were  already  many  pretenders  and  knaves 
who  made  easy  prey  of  the  credulity  of  humanity. 
There  was  no  standard  of  medical  knowledge  or 
of  fitness  to  assume  the  responsibilities  of  medical 
practice.  Recognizing  these  conditions,  the  pub- 
lic-spirited founders  of  our  Society  resolved  to 
come  into  closer  union  for  the  common  good. 

The  preliminary  deliberations  which  led  to  our 
incorporation  are  not  matters  of  record  ; we  simply 
know  their  results.  But  these  results  are  sug- 


6 


THE  MEDICAL  PROFESSION 


gestive  of  the  bond  of  attachment  which,  at  this 
time,  existed  between  the  State  and  the  better 
class  of  medical  men  and  which  has  never  been  in 
serious  peril  since.  The  very  name  of  our  asso- 
ciation is  one  evidence  of  this.  Our  fathers  might 
have  looked  across  the  sea  and  found  an  appro- 
priate title  in  some  w Medico-Chirurgical”  society 
or  " Academy  of  Medicine  ” or  " College  of  Phy- 
sicians,” which  could  be  translated  to  the  new 
world.  But  this  would  not  have  been  in  harmony 
with  their  purpose;  their  purpose  was  to  make  a 
” body  politic  and  corporate  ” which  should  estab- 
lish “ a just  discrimination  ” between  educated 
practitioners  and  ignorant  pretenders  in  medicine, 
a purpose  that  had  in  view  the  welfare  of  the 
community  in  its  broadest  sense.  They  therefore 
asked  the  General  Court  to  give  permanent  ex- 
pression to  this  object  by  granting  the  name  of 
the  Commonwealth  to  the  new  guild  and  by  be- 
stowing corporate  privileges  that  should  corres- 
pond therewith.  That  request  was  granted  and 
we  are  the  Massachusetts  Medical  Society,  broader 
than  medical  sectarianism,  abhorring  exclusive- 
ness, loyal  ever  to  the  State’s  highest  interests, 
proud  of  the  charter  which,  bearing  the  historic 
names  of  John  Hancock  and  Sam  Adams  in  at- 
testation of  its  validity,  the  State  bestowed  upon 
us  in  1781,  the  first  document  of  the  kind  granted 
under  the  constitution.  The  commonwealth  thus 
became  our  alma  mater.  She  gave  her  name  to 
our  newly  created  body;  she  endowed  us  with 
valuable  rights;  and  she  bestowed  other  encourag- 


AND  THE  COMMONWEALTH. 


7 


ing  assistance  and  recognition.  If  she  did  not 
actually  rock  the  infant  " body  corporate  ” in  the 
w cradle  of  liberty,”  she  contributed  an  added  flavor 
of  legality  and  dignity  to  our  first  proceedings  by 
loaning  the  " county  court-house  in  Boston”  as 
the  place  of  meeting  for  Doctor  Holyoke  and  his 
thirty  fellow-founders,  and  placed  us  under  new 
obligations  of  gratitude  later  by  permitting  meet- 
ings of  the  society  in  the  state-house  and  in  other 
public  buildings  belonging  to  the  State. 

Such  was  the  beneficent  and  disinterested  aim 
of  our  fathers  in  founding  this  association;  such 
the  gracious  and  helpful  attitude  of  the  Common- 
wealth in  aiding  that  foundation.  It  is  becoming 
in  us,  the  heirs  and  beneficiaries  of  the  endowment 
thus  established,  to  ask  how  the  aim  of  its  creators 
has  been  fulfilled  during  all  the  years  of  the  cen- 
tury now  drawing  to  its  close;  to  what  degree  the 
prosperity  of  the  State  has  been  advanced  by  the 
Fellows  of  this  organization;  and  what  are  our 
present  duties  to  the  public  in  the  discharge  of  the 
trust  which  our  organic  charter  imposes.  The  little 
company  of  physicians  which  assembled  in  the 
county  court-room  near  Scollay  square,  in  No- 
vember, 1781,  has  by  normal  growth  become  a 
multitude  so  large  that  it  requires  an  entire  block 
of  buildings  to  supply  the  needs  of  its  anniversary 
meetings,  outgrowing  all  less  adequate  accommo- 
dations. Keeping  pace  with  the  progress  which 
has  made  Massachusetts  a leader  in  all  things  that 
make  for  the  highest  civilization,  our  organization 
holds  and  has  long  held  the  highest  rank  as  the 


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THE  MEDICAL  PROFESSION 


representative  of  the  best  type  of  scientific  and 
practical  medicine.  It  is  true  that  it  does  not 
include,  nor  has  it  ever  included,  in  its  fellowship, 
all  those  who  by  education  and  personal  character 
have  been  entitled  to  avail  themselves  of  its  priv- 
ileges. Undoubtedly  there  are  many  practitioners 
who  ought  to  be  on  our  rolls  of  membership  but 
who  are  content  to  remain  as  medical  gentiles- 
Any  stud}r  of  the  relations  of  physicians  to  the 
commonwealth  should  not  omit  these  from  its 
scope.  It  is  their  misfortune,  as  well  as  their 
fault,  that  they  neglect  the  invitation  to  affiliate 
with  the  only  incorporated  association  which  rep- 
resents in  the  largest  sense  the  principles  which 
should  be  dear  to  every  educated  medical  man. 
But  I remember  that  what  I have  to  offer  to-day, 
while  it  may  apply  comprehensively  to  all  who  use 
the  title  and  perform  the  functions  of  physicians, 
is  addressed  especially  to  a body  which  for  more 
than  a hundred  years  has  stood  for  the  best  that 
is  attainable  in  medical  science  and  art,  and  it  is 
therefore  peculiarly  appropriate  that  the  physician 
whose  relation  toward  the  commonwealth  we  are 
to  discuss  should  be  the  physician  who  is  also  the 
Fellow  of  this  society.  It  is  likewise  fitting  that 
the  commonwealth  concerning  which  we  speak  in 
this  connection  should  be  the  one  to  which  we  owe 
allegiance  as  citizens  and  the  one  from  which  we 
derive  our  chartered  rights  as  Fellows. 

Massachusetts,  in  founding  its  constitutional 
government  in  1780,  established  three  co-ordinate, 
yet  independent,  departments;  and  ordained  that 


AND  THE  COMMONWEALTH. 


9 


the  legislative,  the  executive  and  the  judicial  func- 
tions should  be  forever  distinct.  This  three-fold 
distribution  of  organic  powers  and  duties  in  the 
State  invites  consideration  of  our  relations,  as 
physicians,  to  each  of  the  fundamental  depart- 
ments, and  leads  us  to  ask  what  has  been  accom- 
plished and  what  remains  to  be  done  in  directions 
wherein  the  commonwealth  and  the  medical  pro- 
fession are  mutually  concerned. 

I.  To  what  extent,  then,  in  the  first  place,  has 
the  State,  through  its  General  Court,  as  its  legis- 
lative department,  enacted  laws  that  are  of  parti- 
cular interest  to  the  members  of  our  profession  as 
a class?  An  inspection  of  the  public  statutes  will 
be  rewarded  with  the  discovery  of  the  following 
requirements,  exemptions  and  prohibitions,  in  force 
at  the  present  time: 

" Practising  physicians,”  with  a few  other  equally 
fortunate  public  servants,  are  exempt  from  enrol- 
ment in  the  militia. 

w Able  and  discreet  men,  learned  in  the  science 
of  medicine  ” are  to  be  appointed  medical  exami- 
ners in  each  county. 

" A physician  who  has  attended  a person  during 
his  last  illness  ” must  furnish,  for  the  purposes  of 
registration,  certain  specified  facts  relating  to  the 
patient  and  his  illness. 

" Physicians”  shall  make  a monthly  report  of 
the  births  at  which  they  were  present,  the  penalty 
for  neglect  being  double  that  for  delinquency  in 
the  matter  of  death  certificates. 


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THE  MEDICAL  PROFESSION 


" A physician  shall  give  ” immediate  written 
notice  of  all  the  cases  of  such  diseases  under  his 
care  as  the  local  sanitary  board  declares  to  be 
dangerous  to  the  public  health,  and  again  the 
penalty  for  neglect  is  substantial. 

Under  carefully  devised  provisions  and  restric- 
tions, " any  physician  or  surgeon  ” may  have  the 
dead  bodies  of  certain  paupers,  " to  be  by  him  used 
within  the  State  for  the  advancement  of  anatomi- 
cal science”;  and,  in  similar  fashion,  he  may  have 
the  dead  body  of  an  executed  murderer;  but  if  he 
" willfully  digs  up,  disinters,  removes  or  conveys 
away  a dead  body  ” without  authority,  or  w buys, 
sells,  or  keeps  for  sale,  the  dead  body  of  a human 
being,”  he  shall  be  punished  by  imprisonment  or 
fine. 

]STo  insane  person  shall  be  committed  to  a lunatic 
hospital  except  upon  the  certificate  of  ” two  phy- 
sicians ” having  special  qualifications  and  comply- 
ing with  specific  requirements ; and  in  each  of  the 
State  lunatic  hospitals,  “an  educated  female  physi- 
cian shall  be  appointed  assistant  physician.” 

When  the  estate  of  a deceased  person  is  insol- 
vent, w the  necessary  expenses  of  his  last  sickness” 
stand  as  a preferred  claim  before  all  other  debts; 
while  if  the  insolvent  debtor  be  living,  " all  debts 
due  to  physicians  for  medical  attendance  on  him 
or  his  family  ” are  third  in  the  order  of  priority. 

" Practising  physicians  and  surgeons  regularly 
licensed  ” are  in  the  list  of  persons  exempt  by  law 
from  serving  as  jurors;  but  they  are  not  excused 
from  any  of  the  requirements  which  pertain  to 


AND  THE  COMMONWEALTH. 


11 


witnesses  in  courts  of  law,  nor  have  they  any 
special  privileges  if  misfortune  overtakes  them  and 
a judgment  for  debt  is  to  be  executed. 

Among  the  ” twelve  reputable  citizens  ” to  whom 
the  law  accords  an  invitation  to  be  present  at  the 
hanging  of  a condemned  murderer,  ” a physician 
or  surgeon  ” is  especially  included. 

w A physician  or  surgeon  ” is  mentioned  in  the 
list  of  the  officers  to  be  appointed  by  the  Governor 
for  the  administration  of  affairs  at  the  state  prison 
and  the  reformatory  prison  for  men;  while  the 
reformatory  prison  for  women  has,  according  to 
the  statute  requirements,  a staff  almost  wholly 
composed  of  women,  including  the  ” one  physician” 
whose  term  of  service  is  " during  the  pleasure  of 
the  Governor  and  Council.” 

Such  are  some  of  the  statutory  privileges  and 
obligations  which  to-day  apply  to  Massachusetts 
physicians.  It  cannot  have  escaped  your  notice 
that  the  obligations  far  exceed  the  privileges. 
When  we  have  mentioned  exemption  from  jury 
and  militia  duty,  some  preferment  of  the  claims  of 
physicians  against  insolvent  estates,  the  rarely 
used  permission  to  dissect  dead  bodies,  together 
with  the  happily  infrequent  opportunity  of  attend- 
ing a judicial  hanging,  we  have  included  all  the 
essential  benefits  which  the  commonwealth  bestows 
on  medical  practitioners.  It  is  not  a long  list  of 
special  indulgences,  nor  a very  valuable  one. 

Another  feature  of  these  statutes  invites  a word 
of  comment.  Is  it  just  and  equitable,  on  the  part 
of  the  State,  to  exact  gratuitous  service  and  to 


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THE  MEDICAL  PROFESSION 


punish  us  by  a heavy  fine  for  non-compliance? 
This  is  a question  which  has  exercised  the  minds 
of  medical  men  who  were  entirely  free  from  any 
purely  mercenary  bias.  Take  the  matter  of  death 
certificates,  for  example;  the  determination  and 
proper  formulation  of  the  cause  of  a death  is  a 
work  requiring  professional  skill  and  judgment. 
It  is  not  the  easy  task  which  it  appears  to  be;  and 
those  who  have  to  do  with  the  registration  of 
deaths  know  the  truth  of  this,  for  they  see  numer- 
ous instances  of  failure  and  blundering  in  this 
seemingly  simple  matter.  I doubt  not  that  many 
of  my  audience  have  met  with  difficulty,  again  and 
again,  in  the  satisfactory  framing  of  a death-certi- 
ficate, and  have  done  some  severe  medical  thinking 
in  order  to  comply  with  the  statute  requirement. 
And  this  service  the  State  exacts  as  a formal 
matter,  without  any  return  consideration;  more 
than  this,  it  makes  neglect  or  refusal  to  obey  the 
law  forthwith  a crime  of  the  same  grade  and  with 
similar  penalties  as  the  passing  of  a toll-bridge 
without  paying  the  legal  toll,  or  the  wilful  suffer- 
ing of  one’s  sheep,  swine  or  fowl  to  trespass  on 
his  neighbor’s  land,  or  public  indulgence  in  profane 
cursing  and  swearing.  And  the  same  reasoning 
applies  to  the  requirement  that  every  physician 
shall  give  immediate  notice  in  writing,  over  his 
own  signature,  of  every  case  of  small-pox,  diph- 
theria, scarlet  fever,  or  any  other  disease  which 
his  local  board  of  health  declares  to  be  dangerous 
to  the  public  health  and  which  he  is  called  upon 
to  visit,  the  penalty  for  disobedience  in  this  in- 


AND  THE  COMMONWEALTH. 


13 


stance  being  not  less  than  fifty  not  more  than  two 
hundred  dollars.  Let  me  not  be  misunderstood. 
I am  not  desirous  for  a moment  of  arguing  that 
the  State  is  wrong  in  requiring  from  physicians 
this  service  concerning  the  living  and  the  dead; 
I regard  the  registration  of  vital  statistics  and  of 
infectious  diseases  as  fundamentally  indispensable 
to  all  sanitary  administration,  and  to  take  any 
position  of  apparent  hostility  to  it  or  to  suggest 
any  course  of  conduct  that  would  impair  its  value 
and  completeness  would  show  a deplorable  lack 
of  wisdom.  Nor  am  I pleading  for  the  principle 
of  remuneration  for  all  service  rendered;  for  I 
believe  that  every  intelligent  and  public-spirited 
physician,  recognizing  that  his  contributions  to 
registration  will  aid  in  maintaining  and  promoting 
the  public  health  and  general  welfare,  would  not 
be  stimulated  to  better  or  readier  obedience  of  the 
statutes  if,  for  each  certificate,  he  received  a small 
fee.  On  the  other  hand,  he  is  not  inspired  to  do 
his  duty  more  punctually  through  fear  of  fines 
which,  like  the  Quaker  guns  of  Manassas,  are 
meant  rather  to  intimidate  than  to  destroy.  Yet 
the  criticism  remains  true,  that  there  is  an  obvious 
want  of  equity  in  the  fact  that  the  State  makes  an 
unrequited  requisition  upon  physicians  for  medical 
facts  which  they  alone  can  supply  at  an  expense 
of  time  and  knowledge,  and  threatens  them  with 
punishment  as  petty  criminals  if  they  neglect  or 
refuse  to  heed  the  requisition  promptly.  If  a 
penalty  in  connection  with  registration  is  to  be 
exacted  at  all,  it  would  be  more  worthily  attached 


14 


THE  MEDICAL  PROFESSION 


to  wilfully  false  and  fraudulent  certificates,  to 
certificates  that  try  to  cover  criminal  abortion 
under  the  disguise  of  septic  peritonitis,  or  that 
conceal  suicidal  pistol-shot  wounds  under  the 
euphemism  " rupture  of  blood-vessels  and  hemor- 
rhage,” or  that  attempt  to  mislead  by  calling  a 
suicide  by  laudanum  a death  by  coma. 

This  matter,  indeed,  is  not  an  important  one; 
but  it  is  worth  while  to  mention  that  the  common- 
wealth has  shown  some  inconsistency  by  recogniz- 
ing that  the  services  of  physicians  do  have  a value, 
trivial  in  degree,  yet  real  in  fact,  when  applied  to 
observations  and  reports  requiring  no  special  skill 
to  make  them.  For  if  a physician  reports  punc- 
tually to  the  clerk  of  his  city  or  town  a correct  list 
of  all  children  born  therein  during  the  month  next 
preceding,  at  whose  birth  he  was  present,  he  shall 
receive  for  this  purely  clerical  duty  a fee  of 
twenty-five  cents  for  each  birth  so  reported ; while 
neglect  to  report  such  list  is  punishable  by  a fine 
not  exceeding  twenty  dollars.  It  is  notorious  that 
the  registration  of  births  in  Massachusetts  is  de- 
fective, even  under  this  legislation  which  has  pro- 
vided a hope  of  reward  and  a fear  of  punishment 
as  the  double  incentive  to  the  faithful  discharge  of 
a public  duty. 

The  critical  student  of  the  public  statutes  who 
searches  for  any  evidence  therein  that  the  com- 
monwealth through  its  legislature  has  ever  set  up 
any  standard  of  education  or  skill  on  the  part  of 
medical  men,  will  find  little  in  existing  laws  to 
reward  him  for  his  inquiry.  In  a few  instances, 


AND  THE  COMMONWEALTH. 


15 


the  general  court  has  provided  that  special,  though 
purely  relative,  qualifications  shall  be  requisite  in 
certain  contingencies.  Generally,  however,  the 
members  of  our  profession  are  mentioned  under 
their  generic  title  simply,  as  ” physicians  ” or 
w physicians  and  surgeons,”  and  the  undoubted 
intent  is  to  include  under  this  term  all  who  pub- 
licly announce  themselves  to  be  practitioners  of 
the  art  of  medicine  and  undertake  to  treat  sick  or 
injured  persons,  either  for  reward  or  gratuitously. 
There  is  no  attempt  in  the  statutes  to  classify  or 
to  define  "physicians,”  to  declare  by  legislative 
act  who  may  practise  medicine  and  who  shall  not, 
to  protect  the  people  from  the  evil  doings  of  igno- 
rant pretenders,  to  establish  a standard  which 
would  exclude  both  fools  and  knaves.  Massa- 
chusetts has  ever  been  hospitable  to  all  sorts  and 
conditions  of  men,  and  she  welcomes  with  a reck- 
less graciousness  any  who  choose  to  pass  her  open 
door.  She  knows  no  sects,  no  schools,  no  differ- 
ences among  physicians;  all  doctors  are  alike  to 
her  and,  according  to  the  assembled  wisdom  of 
her  law-givers,  they  can  safely  be  left  to  take  care 
of  themselves  according  to  the  principles  of  the 
common  law.  There  is  no  distinction,  either 
natural  or  arbitrary,  which  our  statutes  recognize, 
to  mark  the  fraudulent  pretender  from  the  educated 
and  trustworthy  practitioner.  To  the  citizens  of 
this  State,  there  is  absolutely  unrestricted  liberty 
in  the  choice  of  their  medical  attendants  when 
they  are  ailing  or  are  injured,  a full  realization  of 
the  very  opening  words  of  the  constitution  of  the 


16 


THE  MEDICAL  PROFESSION 


commonwealth,  that  w the  end  of  the  institution, 
maintainance  and  administration  of  government  is 
to  secure  the  existence  of  the  body  politic,  to  pro- 
tect it,  and  to  furnish  the  individuals  who  compose 
it  with  the  power  of  enjoying  in  safety  and  tran- 
quillity their  natural  rights  and  the  blessings  of 
life.” 

This  attitude  of  Massachusetts,  allowing  unre- 
stricted freedom  in  the  practise  of  physic,  has 
exposed  the  State  to  much  criticism.  It  has  given 
rise  to  the  impression  that  her  present  policy  of 
non-interference  with  medicine  has  always  pre- 
vailed, and  that  she  is  now  simply  carrying  forward 
a traditional  rule  of  conduct  in  obstinate  indiffer- 
ence to  the  lessons  of  experience  learned  in  other 
and  younger  communities.  This  inference  is  incor- 
rect. Long  before  any  of  the  modern  devices  for 
statutory  regulation  of  medical  practice  were  an- 
nounced, long  before  many  of  the  commonwealths 
which  are  now  taunting  us  had  been  staked  out  in 
the  primeval  wildernesses  of  the  west  and  north- 
west, Massachusetts  saw  the  need  of  controlling 
the  pretensions  and  active  arrogance  of  charlatanry 
within  her  borders  and  the  clear  duty  of  bestow- 
ing her  recognition  upon  reliable  men  and  women. 
As  early  as  1619,  the  colonial  legislature  enacted 
a law  concerning  ” Chirurgeons,  Midwives,  Phy- 
sitians,”  which  forbade  all  " persons  whatsoever 
imployed  at  any  times  about  the  bodyes  of  men, 
women  or  children,  for  the  preservation  of  life  or 
health  ...  to  presume  to  exercise  or  put 
forth  any  act  contrary  to  the  known  approved  Pules 


AND  THE  COMMONWEALTH. 


17 


of  Art,  . . . without  the  advice  and  consent  of 

such  as  are  skillfull  in  the  same  Art,”  upon  such 
w severe  punishment  as  the  nature  of  the  fact  may 
deserve”;  and  the  act  has  this  quaint  codicil,  that 
the  law  w is  not  intended  to  discourage  any  from 
all  lawfull  use  of  their  skill,  but  rather  to  incour- 
age and  direct  them  in  the  right  use  thereof.” 
Does  any  statute  of  the  many  relating  to  medical 
practice,  which  the  present  generation  has  wit- 
nessed in  various  states  of  the  Union,  show  a 
better  spirit? 

But  we  need  not  look  beyond  the  words  of  our 
own  charter  of  incorporation  to  find  full  evidence 
that  long  ago  the  State  discriminated  sharply  be- 
tween those  who  merited  confidence  and  those 
who  deserved  to  be  restrained.  The  whole  docu- 
ment, from  its  preamble  to  its  conclusion,  is  filled 
with  the  flavor  of  this  wholesome  feeling.  But 
that  which  applies  itself  chiefly  to  our  purpose  in 
this  regard  is  the  remarkable  sentence  which,  like 
a strong  back-bone,  is  built  solidly  into  the  very 
middle  of  the  charter: — 

And  whereas  it  is  clearly  of  importance,  that 
a just  discrimination  should  he  made  between  such 
as  are  duly  educated  and  properly  qualified  for  the 
duties  of  their  profession , and  those  who  may  igno- 
rantly and  wickedly  administer  Medicine , whereby 
the  health  and  lives  of  many  valuable  individuals 
may  be  endangered , or  perhaps  lost  to  the  com- 
munity : 

u Be  it  therefore  enacted  by  the  authority  afore- 
said, That  the  president  and  fellows  of  said  socie- 
2 


18 


THE  MEDICAL  PKOEESSION 


ty,  or  other  such  of  their  officers  or  fellows  as  they 
shall  appoint,  shall  have  full  power  and  authority 
to  examine  all  candidates  for  the  practice  of  physic 
and  surgery,  who  shall  offer  themselves  for  exami- 
nation, respecting  their  skill  in  their  profession.” 

This  placed  a premium  on  proper  qualifications 
and  proved  fitness.  It  established  a standard  and 
made  our  society  the  keeper  of  that  standard,  and 
if  with  the  recently  accepted  Bill  of  Bights  in 
popular  remembrance,  it  did  not  forbid  the  prac- 
tice of  medicine  by  those  who  neglected  or  failed 
to  become  licentiates  under  this  charter,  it  never- 
theless gave  the  community,  what  it  had  not  had 
before,  a chance  to  have  its  medical  practitioners 
classified  according  to  their  worth  and  learning. 
It  was  a most  responsible  function  to  place  upon 
this  young  society  of  physicians,  but  the  trust  was 
adequately  fulfilled  then  and  is  to-day  being  ful- 
filled; and  the  men  and  women  who  possess  the 
letters  testimonial  of  the  censors  of  the  Massachu- 
setts Medical  Society  attesting  their  demonstrated 
and  approved  knowledge  and  fitness  need  no  fur- 
ther passport  to  the  full  confidence  of  the  people 
and  no  better  certificate  to  distinguish  them  from 
those  who  “ignorantly  and  wickedly  administer 
medicine.” 

But  Massachusetts,  through  its  legislature,  did 
not  stop  here.  It  supplied  in  our  charter  a standard 
by  which  it  strove  to  distinguish  the  genuine  coin 
from  the  counterfeit,  and  it  created  the  agency  for 
the  application  of  this  standard  to  all  who  wished. 
Subsequent  enactments  strengthened  and  con- 


AND  THE  COMMONWEALTH. 


19 


firmed  this  aim.  The  act  of  incorporation  of  1781 
was  altered  in  1803,  the  better  to  ” effect  the  im- 
portant and  desirable  purposes  for  which  it  was 
designed.”  The  limit  to  the  number  of  fellows, 
previously  set  at  only  seventy  as  its  maximum, 
was  removed;  the  councillors  were  created;  and  a 
board  of  censors  was  provided  who  were  to  ex- 
amine candidates,  and  to  give  to  such  as  were 
successful  in  their  examination  a certificate  of 
approbation  and  of  their  license  to  become  prac- 
titioners in  medicine  or  surgery;  " after  three 
years  of  approved  practice  in  medicine  and  sur- 
gery, and  being  of  good  moral  character,  and  not 
otherwise,”  these  licentiates  were  to  be  eligible  for 
the  higher  honor  of  becoming  Fellows.  By  this 
same  act,  district  societies  were  allowed  to  be 
organized  for  purposes  of  medical  improvement, 
and  each  district  was  endowed  with  the  additional 
function  of  sharing  with  the  censors-at-large  the 
authority  to  examine  and  admit  candidates  for  the 
regular  practice  of  medicine.  In  1831,  the  provi- 
sion that  required  three  years  of  probation  for 
licentiates  before  they  were  admitted  as  Fellows 
of  the  Massachusetts  Medical  Society,  was  re- 
pealed. 

These  various  enactments,  designed  specifically 
for  the  organization  and  development  of  this 
society,  but  having  the  fundamental  purpose  also 
to  improve  the  character  of  the  medical  profession 
in  general  in  this  commonwealth,  do  not  complete 
the  catalogue  of  statutes  which  the  legislature  has 
made  for  the  regulation  of  medical  practice. 


20 


THE  MEDICAL  PROFESSION 


Broad  as  our  charter  was,  in  its  permissive  provi- 
sions, it  was  not  in  the  least  useful  as  prohibitive 
legislation.  We  might  admit  all  duly  qualified 
practitioners  to  our  ranks,  we  had  no  control  over 
the  disqualified  pretender  who  cared  little  for  the 
privileges  which  the  Massachusetts  Medical  Society 
offered.  This  weak  negative  side  in  the  then  cur- 
rent statutes  came  at  length  to  be  seen,  and  in 
1818  a law  was  passed  which  was  designed  to 
remedy  this  defect.  It  is  of  interest  to  us  that 
the  State  continued  to  turn  to  this  Society  to  aid 
in  the  fulfilment  of  its  purpose.  The  statute  pro- 
vided that  every  person  practising  physic  or  sur- 
gery in  Massachusetts,  without  having  received  a 
medical  degree  from  some  college  or  university, 
or  without  being  licensed  by  some  medical  society, 
or  college  of  physicians,  or  by  three  Fellows  of  the 
Massachusetts  Medical  Society  to  be  designated 
in  each  county  by  the  Councillors,  should  not  have 
w the  benefit  of  law  for  the  recovery  of  any  debt, 
or  fees,  accruing  for  his  professional  services”; 
and  every  licensed  practitioner  was  required  to 
deposit  a copy  of  his  license  with  the  clerk  of  the 
town  where  he  resided.  Just  a year  later,  the 
general  court  modified  its  predecessor’s  work  and 
enacted  that  no  person  entering  the  practice  of 
physic  or  surgery  after  a specified  date  should  be 
entitled  to  the  benefit  of  law  for  the  recovery  of 
any  debt  or  fee  for  his  professional  services  unless, 
previously  to  rendering  those  services,  he  had  been 
licensed  by  the  regularly  appointed  censors  of  the 


AND  THE  COMMONWEALTH. 


21 


Massachusetts  Medical  Society  or  had  been  grad- 
uated a Doctor  of  Medicine  in  Harvard  University. 

This  law,  it  will  be  observed,  distinctly  recog- 
nized the  principle  of  the  regulation  of  medical 
practice,  and  this  was  the  only  good  purpose 
which  it  served.  It  had  two  ludicrously  weak 
features;  it  did  not  provide  any  punishment  for 
failure  or  neglect  to  procure  the  required  license, 
and  while  it  presumptively  made  the  way  of  the 
irregular  practitioner  a difficult  one  in  the  matter 
of  collecting  his  fees,  it  left  him  perfectly  free  to 
do  what  no  reputable  physician  ever  does,  it  left 
him  free  to  take  his  pay  in  advance.  Neverthe- 
less, the  law  was  so  satisfactory  and  acceptable  in 
its  working,  that  it  was  re-affirmed  in  all  its  main 
features  in  the  Revised  Statutes  of  1836,  seven- 
teen years  later,  this  Society  being  still  designated 
by  name  as  the  authority  to  manage  the  machinery 
of  examination  and  licensing;  but  there  was  this 
important  modification, — the  courts  were  no  longer 
closed  to  such  unlicensed  physicians  as  sought 
legal  help  in  the  collection  of  their  fees.  The 
penalty  for  neglecting  to  secure  a license  was  still 
missing,  and  the  only  express  reward  for  compli- 
ance with  the  law  was  the  privilege  of  dissecting 
dead  bodies  acquired  in  accordance  with  well  de- 
fined conditions  and  restrictions  still  extant.  This 
anomalous  statute  (vox  et  preterea  nihil)  remained 
in  force  without  amendment  until  1859,  when  it 
dropped  out  of  sight  in  the  general  revision  of  the 
laws  made  by  the  legislature  of  that  year.  Since 
its  disappearance  from  the  stutute  book  there  has 


22 


THE  MEDICAL  PROFESSION 


been  nothing  unlawful  in  ” ignorantly  and  wickedly 
administering  medicine  ” to  the  people  of  Massa- 
chusetts in  violation  of  any  statute;  the  principles 
of  the  common  law  are  the  only  safeguard. 

Meanwhile,  during  this  period  of  thirty  years,  a 
wave  of  legislative  virtue  has  swept  over  the  land 
with  reference  to  the  regulation  of  medical  prac- 
tice. One  State  after  another  has  passed  restric- 
tive laws  of  greater  of  less  stringency  hut  with 
the  single  aim  of  discouraging  quackery.  How 
effective  these  laws  have  been  in  accomplishing 
their  purpose,  or  how  zealously  they  are  executed, 
in  the  various  communities,  we  are  not  now  con- 
cerned in  determining;  the  suggestive  fact  is  that 
Massachusetts  stands  almost  alone  in  her  attitude 
of  toleration.  Of  one  result  of  this  state  of  affairs 
we  all  are  clearly  aware.  The  action  of  neighboring 
States,  near  and  more  distant,  in  requiring  irreg- 
ular practitioners  to  move  on  and  to  stand  not 
upon  the  order  of  their  going,  has  brought  to  our 
too  hospitable  territory  a horde  of  medical  pre- 
tenders who  have  not  been  slow  in  discovering  the 
advantages  of  an  asylum  here.  Moreover,  the 
unlimited  freedom  which  characterizes  medical 
practice  has  encouraged  the  growth  of  a native 
variety  of  charlatans  and  adventurers;  the  weeds 
are  not  all  of  exotic  stock,  some  of  them  are  in- 
digenous and  have  been  permitted  to  grow  in  rank 
luxuriance.  It  is  safe  to  state  that  never  in  the 
history  of  the  commonwealth  has  such  a wide 
variety  been  offered  to  her  people  in  the  matter  of 
choosing  a medical  counsellor  in  time  of  sickness, 


AND  THE  COMMONWEALTH. 


23 


and  that  never  has  the  class  of  charlatans  been  so 
numerous  or  so  haughty. 

And  what  a motley  company  they  are,  these 
disreputable  parasites  upon  the  medical  profession ! 
They  offer  to  the  curious  student  of  anthropology 
a great  diversity  of  types,  ranging  all  the  way  from 
the  long-haired  male  Indian  medicine-man  to  the 
short-haired  female  Christian  scientist;  creatures 
with  " natural  ” and  supernatural  powers,  extraor- 
dinary owners  of  superior  intellects  who  find  no 
difficulty  in  the  problem  of  curing  incurable  dis- 
eases; bio-chemists,  nature-pathists,  mesmerists, 
vivopaths,  psychopaths,  botanic  healers,  magnetic 
healers, — a great  procession  of  social  pests  with 
labels  designed  to  captivate  the  unwary  and  the 
credulous. 

But  these  people  who  boldly  affect  superiority 
by  announcing  themselves  openly  as  irregular 
practitioners,  and  by  assuming  an  eccentric  or 
distinctive  title  in  proof  of  it,  are  not  the  worst 
representatives  of  their  class.  The  charlatans 
who  are  most  harmful  are  those  who  deliberately 
and  fraudulently  take  on  the  simple  designation 
of  ” physician,”  and  so  far  as  any  outward  sign  is 
concerned  are  not  to  be  distinguished  by  the  pub- 
lic from  the  best  and  noblest  members  of  our  pro- 
fession. It  is  possible  that  this  variety  of  irreg- 
ular practitioners  shows,  in  their  method  of  mak- 
ing a living  out  of  the  public,  a higher  degree  of 
shrewdness  than  their  fellows  of  the  former  class, 
because  in  their  use  of  professional  titles,  the  pre- 
fix, " Doctor,”  and  the  suffix,  "M.D.”  are  in  no 


24 


THE  MEDICAL  PROFESSION 


respect  different  in  their  external  application,  from 
those  employed  in  a genuine  way  by  right. 

Then,  there  is  another  form  of  medical  fraud 
which  manifests  itself  in  the  shape  of  w medical 
institutes.”  These  are  evidently  business  enter- 
prises simply,  and  the  management  being  in  the 
hands  of  several  persons,  who  are  always  an- 
nounced as  distinguished,  successful  and  trust- 
worthy exponents  of  medical  science,  the  victims 
of  disease  read  the  obvious  lesson  that  in  a multi- 
tude of  such  counsellors  there  must  be  safety. 

But  however  we  may  classify  and  differentiate 
these  people,  they  all  have  certain  characteristics 
in  common;  there  is  nothing  beneficent  in  their 
motives  or  actions;  they  are  to  the  last  degree 
mercenary;  they  are  busy  obtaining  money  under 
false  pretences;  they  add  nothing  to  the  common 
stock  of  knowledge;  they  contribute  nothing  to 
the  social  welfare;  they  are  a constant  menace  to 
the  public  health.  They  defile  the  columns  of 
the  daily  press  and  of  the  religious  weekly  journals 
with  disgustingly  suggestive  notices  of  their 
pretensions  and  insinuating  invitations  to  walk 
into  their  parlors.  They  make  open  solicitations 
through  their  advertisements  to  the  victims  of 
lustful  practices  to  add  crime  to  imprudence,  and 
they  cover  with  the  thinnest  disguise  their  public 
and  defiant  announcements  that  they  will  commit 
unlawful  acts  and  will  take  all  risks  of  detection 
and  exposure.  It.  is  openly  declared  that,  dis- 
guised as  female  practitioners  of  medicine,  they 
conduct  houses  of  prostitution.  They  deface  all 


AND  THE  COMMONWEALTH. 


25 


accessible  surfaces  with  their  bold  and  lying 
promises,  and  offend  good  morals  by  their  too  open 
allusions  to  unmentionable  subjects.  Like  jug- 
gling fiends,  they  take  advantage  of  every  form  of 
human  misery  to  raise  hope  where  hope  is  vain, 
and  they  wickedly  and  cruelly  draw  the  last  pos- 
sible dollar  from  their  credulous  victims,  who  get 
small  comfort  from  the  fact  that  payment  has  been 
made  in  advance  for  the  wretched  disappointment 
of  unfulfilled  agreements.  If  in  such  a case  death 
comes  to  the  relief  of  these  double  sufferers,  the 
ignorance  of  the  only  physician  recognized  by  the 
statutes  in  such  a relationship  is  attested  by  the 
manner  in  which  the  required  certificate  of  the 
cause  of  the  death  is  executed,  sometimes  unintel- 
ligibly, sometimes  fraudulently,  covering  a crime 
under  the  name  of  an  innocent  disease,  and  always 
raising  a doubt  and  question  of  the  value  of  such 
data  for  the  purpose  of  vital  statistics. 

Can  it  be  possible  that  Massachusetts,  which 
has  long  defended  its  claim  to  the  possession  of 
superior  wisdom  in  the  care  of  all  matters  pertaining 
to  public  health  and  public  morality,  is  willing  to 
tolerate  this  state  of  affairs  indefinitely?  Is  not 
her  indifference  reprehensible?  And  have  not  we, 
as  physicians,  remained  far  too  quiescent  under 
these  growing  evils?  Have  we  not  evaded  a duty 
while  we  maintained  a neutrality?  Ought  we  not 
now  to  speak  out  boldly  and  persistently  until 
some  effective  measure  has  been  adopted  to  con- 
trol and  suppress  the  fungous  growth  of  quackery? 
It  is  to  legislation,  supported  by  an  enlightened 


26 


THE  MEDICAL  PROFESSION 


public  sentiment,  and  rendered  fruitful  by  an 
energetic  enforcement,  that  we  must  look  for  the 
real  remedy,  legislation  that  shall  be  practical 
without  being  cumbrous  or  needlessly  burdensome. 
This  is  not  the  occasion  for  outlining  the  details 
of  such  legislation;  whether  the  statute  should 
supply  a method  of  registration  administered  by 
some  already  established  board,  like  the  State 
Board  of  Health;  or  should  require  examination 
and  license  through  the  agency  of  a purely 
medical  board;  or  should  be  framed  upon  the 
model  of  the  English  law  which  forbids  the  false 
and  fraudulent  use  of  any  name,  title  or  description, 
implying  that  its  user  is  a physician  or  surgeon, 
when  he  has  not  been  educated  or  licensed  as 
such, — all  these  matters  may  safely  be  left  to 
legislative  wisdom.  But  the  main  point  is  that 
the  commonwealth  should  afford  to  its  citizens 
some  guarantee  that  the  persons  who  are  permitted 
to  practise  medicine  are  trustworthy  by  virtue  of 
education.  Above  all,  let  it  be  understood  and 
insisted  upon  that  this  guarantee,  with  its  attendant 
conditions  and  penalties,  is  not  a matter  into 
which  sectarian  medicine  enters  in  any  degree. 
Let  there  be  an  avoidance  of  all  differences  rela- 
ting to  schools  of  practice.  Let  not  the  smoldering 
embers  of  medical  contention  be  drawn  out  of  the 
ashes  and  fanned  into  life  for  the  gratification  of 
controversialists.  Let  it  be  remembered  that  this 
is  not  a question  of  therapeutics  or  of  medical 
ethics,  but  a question  of  medical  education,  with 
the  fundamental  purpose  of  excluding  from  medi- 


AND  THE  COMMONWEALTH. 


27 


cal  practice  those  who  are  unfit  for  it  through 
ignorance  or  wickedness. 

But,  some  will  say,  how  does  this  matter  con- 
cern the  Massachusetts  Medical  Society,  as  a 
society?  Why  need  this  organization  trouble 
itself  to  take  any  part  in  securing  legislation 
against  quackery?  Are  we  not  in  the  possession 
of  an  indefeasible  charter,  with  ample  protection 
of  our  rights  and  privileges  as  physicians?  Do 
we  not  enjoy,  as  a Society,  the  respect  and  con- 
fidence of  the  community?  Does  not  the  public 
recognize  in  this  association  a body  of  medical 
men  and  women  offering  ample  evidence  of  the 
trustworthiness  and  intelligent  skill  that  are  de- 
sired? If  any  educated  physician  in  Massachusetts 
wishes  to  acquire  the  privileges  of  this  recognition, 
by  entering  this  fellowship,  is  not  the  way  easy 
and  the  method  simple?  Why  need  we,  an  old 
and  honored  body  of  regular  physicians,  fret  about 
quackery?  Do  not  the  charlatans  give  us  new 
and  profitable  business  by  their  blunders?  Why 
should  we  meddle  with  the  inherent  right  of  every 
individual  to  choose  his  adviser  in  case  of  injury 
or  sickness?  Will  not  the  prudent  man  make 
seasonable  inquiry  and  select  the  best;  and  cannot 
we  wisely  leave  this  decision  without  dictation, 
sure  that  in  the  long  run  the  fittest  will  survive? 
Why  need  we  ask  to  have  new  burdens  and  re- 
strictions placed  upon  us? 

From  the  point  of  view  of  expediency  and  pro- 
priety, as  they  apply  to  this  Society,  this  purely 
selfish  and  pharasaical  course  of  reasoning  is  clearly 


28 


THE  MEDICAL  PROFESSION 


correct.  This  organization  will  do  well  to  maintain 
its  independent  attitude.  It  has  no  wish  for  a re- 
newal of  the  legislation  which  formerly  made  it  the 
sole  censor  of  medical  practice  in  this  State.  It  is 
content  to  attend  to  its  own  affairs.  It  has  no 
ambition  to  pose  as  a monopolist  in  medicine.  It 
sets  an  example  in  medical  tone,  and  in  its  tradi- 
tions and  present  aim,  cordially  favors  the  highest 
attainable  development  in  medical  education  and 
medical  practice,  but  it  has  seen  the  mischief  and 
disappointment  which  have  attended  attempts 
made,  in  its  name,  to  influence  and  procure  medical 
legislation.  But  this  view  does  not  absolve  us, 
its  individual  members,  from  grave  responsibility 
regarding  questions  of  public  welfare.  We  are 
citizens  of  the  commonwealth  as  well  as  physi- 
cians; and,  as  citizens,  jealous  of  the  good  name 
of  Massachusetts,  ashamed  of  her  false  position  in 
the  matter  now  under  discussion,  we  have  the 
right  and  the  duty  to  protest  that  some  remedy 
should  be  applied  to  eradicate  the  evils  which  I 
have  tried  to  describe.  We  ought  to  do  all  in  our 
power  to  secure  some  practical  process  of  sifting 
which  shall  afford  to  the  people  an  assurance  that 
the  State  is  unwilling  to  trust  the  lives  and  health 
of  her  inhabitants  to  charlatans  and  adventurers. 
We  ought  to  insist,  and  insist  again,  that  it  is  not 
for  ourselves,  or  to  promote  our  own  interests,  that 
we  wish  the  State  to  interfere,  but  that  it  is  in  be- 
half of  the  thousands  in  her  population  who, 
through  lack  of  knowledge  or  discrimination, 
become  the  victims  of  chicanery  and  fraud.  We 


AND  THE  COMMONWEALTH. 


29 


ought  to  demand  that  protection  for  the  classes  of 
people  that  do  not  and  cannot  protect  themselves. 
If  professedly  intelligent  and  cultured  persons 
choose  to  demonstrate  their  wisdom  in  a peculiar 
fashion,  by  amusing  themselves  with  the  mind- 
cure,  and  Christian  science  and  hypnotism,  and 
other  genteel  fads,  it  should  be  with  the  distinct 
condition  that  it  is  without  the  State’s  approval  of 
their  folly.  The  strong  desire  shown  by  a certain 
class  of  individuals  in  this  community  to  imitate 
and  emulate  their  prototypes  in  ancient  Athens  in 
eagerness  " to  hear  and  to  tell  some  new  thing  ” 
offers  no  excuse  for  indifference,  for  human  life 
is  in  the  balance  as  the  material  upon  which  the 
novelty  is  to  be  tried  as  an  experiment. 

In  this  matter,  we  can  take  a useful  lesson  from 
the  very  class  of  pretenders  who  are  under  our 
study.  The  lesson  is  that  if  we  would  accomplish 
anything  with  the  legislature,  there  must  be  har- 
monious, energetic,  associated  action.  Let  there 
be  but  a whisper  of  an  intended  purpose  to  obtain 
legislation  to  regulate  medical  practice,  and  the 
swarm  of  charlatans,  grown  bold  by  its  very  numeri- 
cal strength  in  Massachusetts,  begins  to  organize 
for  defence.  The  whole  body  comes  to  the  rescue 
with  a zeal  and  enthusiasm  born  of  a resolve  to 
ensure  self-preservation.  They  raise  funds,  the 
manner  of  whose  distribution  it  would  not  be  re- 
spectful to  intimate.  They  secure  able  counsel  in 
the  persons  of  eloquent  lawyers  or  popular  clergy- 
men, who  talk  long  and  well  of  personal  liberty 
and  the  rights  of  man.  They  publish  a newspaper 


30 


THE  MEDICAL  PKOEESSION 


of  their  own,  which  gives  information  of  every 
movement  of  their  "enemy”;  and,  by  methods 
easily  imagined,  they  convert  to  their  views  the 
newspapers  which  others  publish  and  which  derive 
from  the  advertisements  of  quackery  a revenue 
not  to  be  despised.  And  so  it  happens  that  the 
petitioners  for  legislation,  only  half  prepared  for 
effective  action,  usually  representing  a small 
coterie  and  a divided  sentiment,  have  gone  down 
again  and  again  before  this  numerous  and  power- 
ful alliance  of  falsehood  and  fraud,  and  have  been 
given  leave  to  withdraw.  It  is  evident  that  this 
experience  will  be  repeated  until  we  realize  the 
extent  and  the  strength  of  the  force  which  has 
intrenched  itself  in  our  midst,  and  until  we  emulate 
it  in  enthusiasm,  sacrifice  and  persistency. 

Is  it  not  extraordinary  that  Massachusetts  has 
always  been  so  ready  to  legislate  in  an  endless 
variety  of  directions  affecting  the  life  and  well- 
being of  her  population,  and  is  reluctant  to  inter- 
fere with  uneducated  and  unfit  practitioners  of 
medicine?  The  general  court  has  provided  for 
the  inspection  of  nearly  everything  that  enters  in- 
to domestic  administration,  and  has  ordained 
proper  penalties  for  frauds  and  adulterations;  wq 
have  ample  protection  in  the  matter  of  milk  and 
vinegar,  chocolate  and  nails,  gas  and  leather,  con- 
fections and  drugs ; but  none  against  the  charlatan. 
Massachusetts  licenses  her  auctioneers  and  her 
pedlers,  her  pilots  and  her  publicans,  her  pawn- 
brokers and  her  warehouse-men,  her  dentists  and 
her  druggists;  she  places  even  clergymen  and 


AND  THE  COMMONWEALTH. 


31 


lawyers  under  regulations,  but  no  difference  exists 
in  her  esteem  between  the  educated  physician  and 
the  fraudulent  healer  which  an  adjacent  State  has 
spewed  out  upon  our  soil.  We  have  statutes  for 
the  protection  of  lobsters  and  smelts,  rabbits  and 
partridges;  but  for  sick  people,  the  State  oilers  no 
defence  against  quackery. 

Let  not  medical  men  say  that  it  is  useless  to 
seek  a remedy  from  the  legislature,  that  charlatan- 
ism has  become  too  firmly  rooted  here  to  be  eradi- 
cated by  any  means,  however  drastic.  Repeatedly 
it  has  been  demonstrated  that  measures  of  reform 
have  been  successfully  accomplished  with  the  aid 
of  our  profession  in  shaping  and  guiding  legisla- 
tion. Take  a single  illustration,  the  evolution  of 
the  methods  prescribed  for  the  commitment  and 
treatment  of  the  insane.  As  late  as  1827,  an  act 
was  passed  by  the  Massachusetts  legislature 
which  included  every  excited  lunatic  with  “ rogues, 
vagabonds,  common  beggars,  and  other  idle,  dis- 
orderly and  lewd  persons,”  and  provided  for  his 
incarceration  in  a jail  or  house  of  correction  until 
he  was  “ restored  to  his  right  mind.”  This  barba- 
rity continued  until  the  State,  in  1832,  heeding 
the  representations  of  physicians,  established  the 
first  lunatic  hospital  at  Worcester.  For  many 
years  after  this,  the  process  of  commitment 
continued  to  be  a purely  legal  one,  without  any 
required  medical  examination.  But  the  protests 
of  physicians  again  prevailed.  In  1844,  the  legis- 
ture  passed  an  act  which  recognized,  for  the  first 
time,  that  insanity  was  a disease,  whose  diagnosis 


32 


THE  MEDICAL  PKOFESSION 


required  medical  knowledge,  rather  than  legal 
acuteness.  In  1862,  it  was  enacted  that  for  the 
commitment  of  an  insane  person  to  a lunatic  hos- 
pital, “ the  evidence  and  certificate  of  at  least  two 
respectable  physicians  ” should  be  required  as  a 
preliminary  to  establish  the  fact  of  insanity.  Some 
modifications  have  been  made  in  the  amount  and 
character  of  the  medical  evidence  in  these  cases, 
but  the  recognition  of  the  true  nature  of  insanity 
and  of  the  propriety  of  placing  its  humane  treat- 
ment in  the  hands  of  physicians,  rather  than  in 
those  of  the  keepers  of  jails,  was  due  to  the  labors 
of  such  men  as  Bell,  Wyman,  Kay  and  Jarvis. 
This  result  shows  the  effects  which  medical  men 
may  accomplish  at  the  State  House  if  only  their 
efforts  are  rightly  directed  and  persistently  exer- 
cised. Other  examples  of  this  force  might  be 
cited.  The  statutes  relating  to  the  public  healthy 
to  the  registration  of  vital  statistics,  to  compulso- 
ry vaccination,  to  the  use  of  subjects  for  anatomi- 
cal study,  to  the  investigation  of  deaths  by  vio- 
lence, are  all  memorials  of  the  intelligent  zeal  of 
medical  men  in  shaping  and  obtaining  wise  legis- 
lation. What  physicians  have  accomplished  in 
the  past  is  an  augury  and  proof  of  what  they  may 
now  accomplish  in  the  attainment  of  statutory 
regulation  of  medical  practice.  And  not  in  this 
direction  alone.  There  are  other  matters  wherein 
wholesome  laws  are  needed.  I have  only  to  sug- 
gest the  desirability  of  legislation  for  the  more 
effectual  prevention  of  the  spread  of  contagious 
diseases,  including  syphilis;  for  less  barbarous 


AND  THE  COMMONWEALTH. 


33 


methods  in  the  punishment  of  convicted  murderers; 
for  better  dwellings  for  the  poor;  for  medical  in- 
spection of  schools;  for  the  compulsory  establish- 
ment of  a local  health-board  in  every  town.  In 
these,  and  other  similar  directions,  the  educated 
physicians  of  Massachusetts  have  it  in  their  power 
to  bring  about  salutary  reforms.  It  is  a power  that 
is  not  sufficiently  appreciated  by  us,  its  possessors. 
It  is  a power  which  may  find  its  correct  exercise  in 
various  ways:  in  the  open  and  candid  expression 
of  opinion  as  we  meet  our  acquaintances  and 
clients;  or  in  properly  formulated  memorials  to 
the  general  court;  or  in  attendance  and  spoken 
testimony  at  hearings  before  legislative  commit- 
tees; or  even  in  service  in  the  law-making  body 
itself.  It  is  to  the  credit  of  our  Society  that  its 
members  have  shown  their  willingness  to  interrupt 
their  professional  labors  and  to  respond  to  the  call 
of  their  neighbors  to  represent  them  in  the  legis- 
lature. It  is  an  honorable  service,  and  nearly 
every  session  has  found,  included  in  its  rolls,  the 
names  of  reputable  physicians,  members  of  this 
Society,  who  have  given  intelligent  and  faithful 
attention  to  legislative  problems,  the  satisfactory 
solution  of  which  has  been  largely  due  to  their 
wise  counsel  and  to  the  experienced  judgment 
derived  from  their  medical  training. 

II.  But  the  true  test  of  the  value  of  laws  lies 
in  their  faithful  execution  and  judicious  applica- 
tion. Let  us  inquire,  now,  concerning  the  rela- 
tionship of  our  profession  to  the  Commonwealth’s 
executive  department. 

3 


34: 


THE  MEDICAL  PKOFESSION 


In  two  instances,  Massachusetts  has  selected  its 
supreme  executive  magistrate,  the  Governor,  from 
the  medical  profession  and  from  the  fellowship  of 
this  Society.  Governor  John  Brooks  was  elected 
in  1816  and  continued  in  office,  by  annual  re- 
election,  until  1823.  He  was  a practising  physi- 
cian, and  became  a Fellow  of  the  Massachusetts 
Medical  Society  in  1786.  He  undoubtedly  received 
high  political  recognition  on  account  of  his  servi- 
ces as  an  officer  during  the  revolutionary  war,  for 
he  held  the  rank  of  Major  at  the  battle  of  Bunker 
Hill,  and,  later,  was  in  command  of  a regiment 
and  was  held  in  high  esteem  by  Washington.  It 
does  not  appear,  however,  that  his  medical  know- 
ledge acted  to  discredit  his  reputation,  or  to  limit 
his  efficiency,  as  a Governor;  for  his  long  service 
in  that  office  is  good  proof  of  the  manner  in  which 
he  commended  himself  to  the  people’s  favor.  His 
standing  as  a physician  is  attested  by  the  honorary 
degree  of  Doctor  of  Medicine  which  Harvard  Col- 
lege bestowed  upon  him  in  1810,  six  years  before 
political  success  lent  adventitious  lustre  to  his 
name  as  a medical  man.  It  is  further  attested  by 
the  fact  that  he  was  chosen  in  1808  to  deliver  the 
annual  discourse  before  this  Society,  and  by  his 
election  to  the  presidency  of  the  Society  in  1823, 
as  soon  as  he  was  excused  from  farther  service  as 
Governor  of  the  State.  He  was  greatly  attached 
to  this  organization,  and  gave  good  proof  of  his 
interest  in  its  welfare  by  bequeathing  to  it  his  en- 
tire medical  library. 

Governor  Brooks  was  succeeded  in  1823  by 


AND  THE  COMMONWEALTH. 


35 


another  physician,  Dr.  William  Eustis,  who  died 
in  office  in  1825.  He,  too,  like  his  predecessor, 
had  a reputation  derived  from  his  military  ser- 
vices in  the  war  of  the  revolution ; but  his  services 
here  were  distinctly  in  the  line  of  his  profession, 
for  he  was  associated  with  Dr.  John  Warren  and 
Dr.  William  Damage  in  the  care  of  the  wounded 
after  the  battle  of  Bunker  Hill,  he  himself  being 
the  senior  surgeon  of  the  staff.  Although  he  had 
studied  medicine  with  Dr.  Joseph  Warren,  who  is 
better  known  by  his  title  of  Major  General,  it  does 
not  appear  that  Dr.  Eustis  ever  took  a medical 
degree.  He  remained  in  the  army  surgical  staff 
till  the  close  of  the  war.  He  joined  this  Society 
in  1785.  He  evidently  had  ambition  to  shine  in 
other  orbits  than  that  of  the  plodding  practitioner, 
for  besides  being  governor  of  Massachusetts  he 
was,  earlier,  a member  of  congress,  a secretary  of 
war  and  a minister  resident  at  the  court  of  the 
Netherlands. 

These  two  physicians  appear  to  have  satisfied 
the  desire  of  the  people  for  governors  having 
medical  training  and  experience,  although  tradi- 
tion suggests  that,  since  the  time  of  Eustis,  other 
medical  men  have  not  been  reluctant  to  assume 
the  cares  of  the  office  if  the  opportunity  appeared 
auspicious  for  their  ambition.  But  it  should  be 
stated  that  long  before  Brooks  and  Eustis,  long 
before  our  Society  was  conceived,  Massachusetts 
had  in  her  colonial  history  two  other  governors  who 
were  primarily  magistrates,  but  who  knew  enough 
of  medicine  to  add  materially  to  their  usefulness 


36 


THE  MEDICAL  PROEESSTON 


and  esteem.  Governor  Edward  Winslow  w was 
skilled  in  the  practice  of  physic  ” and  made  his 
therapeutic  attainments  materially  advantageous 
to  the  colonists  of  Plymouth  and  to  their  aborigi- 
nal neighbors  as  well.  Governor  John  Winthrop, 
too,  added  to  his  other  claims  to  the  gratitude  of 
the  settlers  of  the  Massachusetts  Bay  Colony,  a 
practical  acquaintance  with  drugs  and  their  uses, 
which  made  his  public  functions  all  the  more  bene- 
ficent. His.  double  service  to  his  people  was 
recognized  by  his  venerated  pastor,  Rev.  John 
Cotton,  who  described  him  as  a " help  for  our 
bodies  by  physick,  for  our  estates  by  law”;  thus 
fixing  his  place  as  an  ideal  medicodegal  practi- 
tioner. His  son,  John  Winthrop,  Governor  of 
Connecticut,  was  an  educated  physician. 

The  second  office  in  the  gift  of  the  people  of 
Massachusetts,  that  of  lieutenant-governor,  has 
been  held  by  three  members  of  this  Society,  David 
Cobb  (who  presided  as  a judge  when  he  was  not 
practising  medicine),  Henry  Halsey  Childs  and 
Elisha  Huntington. 

The  executive  council  of  the  commonwealth  has 
had  many  medical  representatives  in  its  member- 
ship in  the  course  of  its  history.  They  have  done 
excellent  service  in  advancing  the  interests  of  our 
profession  whenever  occasion  offered.  This  was 
especially  the  case  in  1877,  when  the  assistance  of 
the  late  Dr.  William  Cogswell  was  of  great  value 
in  the  reform  of  the  methods  for  conducting  in- 
vestigations of  deaths  by  violence. 

In  municipal  administration,  our  profession  has 


AND  THE  COMMONWEALTH. 


37 


shown  its  adaptability  for  public  affairs  in  numerous 
instances.  Repeatedly,  medical  men  have  demon- 
strated their  acceptability  in  the  office  of  mayor 
and  in  various  subordinate  positions  in  city  and 
town  government.  When  we  read,  a few  months 
ago,  in  the  obituary  notice  of  one  of  our  oldest 
and  most  esteemed  associates,  that  he  had  served 
continuously  for  forty  years  as  the  keeper  of  the 
records  of  the  town  in  which  he  lived  and  died, 
we  had  good  proof  that  his  capability  and  fidelity 
were  recognized  by  his  fellow  citizens.  So,  too, 
we  may  recall  the  admirable  services  of  our 
brethren  in  the  conduct  of  school-administration 
and  in  the  interests  of  free  education  under  the 
fostering  care  of  the  commonwealth. 

Again,  in  the  management  of  the  public  institu- 
tions belonging  to  the  State,  medical  men  have 
found  a congenial  field  for  the  exercise  of  their 
wise  judgment  and  executive  ability.  Ever  since 
the  establishment  of  the  first  lunatic  hospital  by 
the  State  in  1832,  at  Worcester,  the  boards  of 
trustees  of  these  and  similar  foundations  have 
welcomed  the  acquisition  and  assistance  of  phy- 
sicians as  an  essential  element  of  their  success. 
The  credit  for  the  progressively  humane  methods 
in  the  treatment  of  the  dependent  wards  of  the 
State  in  hospitals  for  the  insane  must  be  divided 
between  the  able  medical  superintendents  of  those 
asylums  and  the  medical  men  in  the  boards  of 
government.  If  one  desired  a demonstration  of 
the  executive  ability  of  physicians,  let  him  com- 
pare the  State  Almshouse  at  Tewksbury,  as  it  is 


38 


THE  MEDICAL  PROFESSION 


to-day,  with  its  scandalous  condition  before  1876; 
its  discipline,  its  tine  hospital  service,  its  freedom 
from  abuses,  are  in  sharp  contrast  with  the  methods 
and  results  which  characterized  its  management 
before  a physician  took  charge  of  it  under  the 
authority  of  the  legislature. 

Why  should  not  the  executive  efficiency  of  men 
trained  as  physicians  be  utilized  still  further  in 
our  public  institutions?  In  India,  the  governor- 
ship of  jails  and  the  position  of  medical  officer 
are  combined  in  the  one  person  of  a medical  man, 
whose  united  functions  result  in  great  advantage 
to  the  institutions  and  economy  to  the  State. 
Doctors  of  medicine  who  can  manage  great  hos- 
pitals, can  govern  penal  reformatories;  and  con- 
victs, as  well  as  lunatics,  would  be  none  the  worse 
if  their  full  sanitary  supervision  were  in  the  hands 
of  specially  trained  officials.  Who  can  doubt  that 
the  discipline  of  a convict  prison  would  be  im- 
proved if  it  were  manifest  that  judicious  care  were 
taken  to  maintain  the  health  of  the  inmates  by  the 
humane  and  practical  methods  of  medical  resident 
officers?  By  the  gradual  education  of  junior 
medical  officers  in  this  service,  a supply  of  execu- 
tive officials  would  be  at  the  disposal  of  the  State 
for  the  management  of  its  correctional  institutions 
in  a proper  and  acceptable  manner 

There  is  one  chapter  of  the  Massachusetts  laws 
whose  administration  has  always  been  an  agreeable 
duty  for  the  members  of  our  profession.  The 
statutes  relating  to  the  public  health  have  been 
especially  interesting  to  medical  men,  and  the  in- 


AND  THE  COMMONWEALTH. 


39 


telligent  practical  application  of  them  has  always 
had  its  best  agents  among  physicians.  Ever  since 
the  board  of  health  of  Boston,  ninety  years  ago 
this  summer,  fitted  up  an  observation  hospital  on 
Noddle’s  Island  and  invited  Dr.  Benjamin  Water- 
house  and  other  physicians  to  demonstrate  upon 
the  patients  therein  the  immunity  from  small-pox 
infection  which  Jenner’s  recently  discovered  opera- 
tion of  vaccination  bestowed;,  nay,  ever  since  Dr. 
Boy  1st  on,  nearly  a century  earlier,  fearlessly  and  suc- 
cessfully acted  as  the  champion  of  variolous  inocu- 
lation, and  showed  it,  in  the  face  of  bitter  prejudice 
and  opposition,  to  be  a means  of  protection  against 
the  justly  dreaded  aud  disgusting  scourge  which 
had  swept  periodically  through  the  community, 
Massachusetts  has  found  among  her  physicians  the 
most  zealous  advocates  of  sanitary  legislation,  and 
the  most  faithful  servants  in  executing  her  enact- 
ments. To  the  public,  this  paradox  has  always 
been  a mystery.  Why  medical  practitioners  should 
desire  earnestly  to  hinder  or  control  the  spread 
of  disease,  when  their  livelihood  and  material 
prosperity  depend  on  its  presence,  and  their 
reputation  for  skill  and  success  is  directly  re- 
lated to  its  prevalence,  is  a problem  which  the 
ordinary  intellect  is  unable  to  solve.  The 
reason  is  that  the  vulgar  apprehension  has  not 
grasped  the  difference  between  a vocation  and 
a trade.  The  enterprising  tradesman  is  not  ac- 
customed to  place  obstacles  in  the  way  of  the 
successful  development  of  his  business,  and  he 
cannot  understand  why  physicians  do  not  follow 


40 


THE  MEDICAL  PROFESSION 


his  example.  But  we  are  not  engaged  in  the  pur- 
suit of  a trade,  and  our  methods  are  on  a higher 
plane  than  those  of  mercantile  or  of  mechanic  in- 
dustries. We  look  to  the  welfare  of  humanity  as 
our  first  and  fundamental  object,  and  the  practi- 
tioner who  forgets  this  and  seeks  primarily  the 
gains  which  are  the  objective  reward  of  diligence 
is  not  true  to  the  high  purposes  of  his  profession. 
The  majority  of  physicians  follow  the  more  un- 
selfish course  and  are  therefore  ready  always  to 
aid  and  to  adopt  measures  which  will  protect  the 
people  from  preventable  suffering.  It  is,  there- 
fore, not  surprising  that  they  are  earnest  allies  of 
the  State  in  the  administration  of  sanitary  laws. 
I refer,  of  course,  to  the  statutes  relating  to  muni- 
cipal sanitation  in  its  broadest  sense,  including 
those  enactments,  to  which  I have  already  alluded, 
requiring  the  service  of  physicians  in  giving  in- 
formation concerning  the  presence  of  infectious 
diseases  and  the  registration  of  births  and  deaths. 

And  what  a comprehensive  array  of  enactments 
affecting  the  public  health  the  statute  books  of 
Massachusetts  present!  The  silence  and  indiffer- 
ence of  the  State  with  regard  to  curative  medicine 
is  in  the  sharpest  possible  contrast  with  the  num- 
ber and  variety  of  laws  relating  to  preventive 
medicine.  There  would  almost  seem  to  be  a de- 
sign in  this,  an  evidence  of  a purpose,  however 
chimerical,  to  make  our  profession  a superfluity, 
needing  no  legislative  regulation,  by  abolishing 
through  manifold  acts  of  the  general  court  the 
diseases  which  call  into  exercise  our  therapeutic 


AND  THE  COMMONWEALTH. 


41 


skill.  However  this  may  have  been,  the  authority 
with  which  the  legislature  has  endowed  municipal 
boards  of  health  in  this  commonwealth  is  extra- 
ordinary. 

Recall,  for  a moment,  the  almost  bewildering 
array  of  laws  which  are  at  this  moment  in  force, 
designed  to  promote  health  and  resist  the  encroach- 
ments of  disease.  The  board  of  health  of  your 
city  or  your  town  has  the  power,  under  the  statutes, 
re-inforced  by  decisions  of  the  Supreme  Court,  to 
interfere  with  personal  and  property  rights  in  the 
most  arbitrary  fashion,  if  only  the  interference  is 
in  the  name  of  the  public  health.  It  may  remove 
sick  persons  from  their  homes  and  from  the  care 
of  their  friends  and  family  physician,  and  place 
them  in  hospitals  specially  provided;  or  it  may 
depopulate  a neighborhood,  and  leave  the  patient 
in  sole  and  isolated  possession  of  it.  It  may  turn 
back  travellers  who  come  from  w infected  places  ” 
across  the  boundary  line  of  adjacent  States,  and 
may  detain  at  quarantine  those  who  come  by  sea 
from  other  ports.  It  may  forcibly  break  open  and 
enter  any  house  in  search  of  baggage,  clothing  or 
other  articles  supposed  to  be  infected  with  diseases 
dangerous  to  the  public  health,  and  may  take  pos- 
session of  other  premises  for  the  safe  keeping  and 
storage  of  such  articles.  It  may  call  unpleasant 
attention  to  your  dwelling  by  placing  danger  sig- 
nals upon  it  if  infectious  disease  has  unhappily 
entered  there.  It  may  forcibly  enter  any  building 
or  premises  for  the  purpose  of  examining  into  and 
destroying,  removing,  or  preventing  a nuisance, 


42 


THE  MEDICAL  PROFESSION 


source  of  filth  or  cause  of  sickness;  and  it  may, 
in  like  manner,  in  its  own  way,  but  at  the  cost  of 
the  owner,  remedy  undrained  land  on  which  stag- 
nant water  stands.  It  may  compel  you  to  abandon 
the  conveniences  of  the  ancient  cess-pool  and  privy 
vault  on  your  grounds  and,  at  considerable  ex- 
pense to  you,  connect  your  dwelling  with  the  pub- 
lic sewer.  It  may  surprise  you  by  a declaration 
that  a disease  which  you  have  not  deemed  to  be 
formidable  is  hereafter  to  be  classed  as  " danger- 
ous ” to  the  public,  and  that  every  case  under  your 
observation  is  to  be  reported,  and  the  method  of 
disinfection  at  the  termination  of  the  case  is  sub- 
ject to  its  approval.  It  may  vacate  and  close 
dwellings  which  it  deems  unsuited  for  habitation 
and  may  prohibit  the  exercise  of  any  offensive 
trade  outside  the  limits  which  it  assigns.  It  has 
control  of  the  cemeteries  in  which  your  dead  are 
buried,  it  licenses  the  undertakers  who  have  charge 
of  the  burial,  and  it  stands  in  the  way  of  a burial 
until  the  medical  certificate  of  the  cause  of  the 
death  is  satisfactory  in  form  and  substance. 

This  epitome  of  the  powers  with  which  every 
local  board  of  health  in  Massachusetts  is  clothed, 
gives  but  a hint  of  the  profusion  and  force  of  the 
laws  which,  since  the  establishment  of  the  first 
board  in  1799,  the  State  has  enacted.  Substantial 
penalties  are  attached  in  case  of  their  violation, 
and  it  would  seem  that  every  sanitary  emergency 
and  exigency  had  been  anticipated.  And  it  is 
worthy  of  remark  that,  with  all  this  array  of 
authority  at  their  command  and  with  the  judicial 


AND  THE  COMMONWEALTH. 


43 


officers  of  the  State  under  an  obligation  to  render 
executive  aid  in  case  of  need,  the  boards  of  health 
have  never  acted  in  an  arbitrary  or  unjustifiably 
severe  manner.  Too  often,  indeed,  sanitary  ad- 
ministration has  been  characterized  in  some  com- 
munities by  deplorable  laxity  and  shiftlessness, 
rather  than  by  offensive  zeal.  The  cause  of  this 
inertia  lies  in  the  lack  of  a genuine  public  spirit 
which  should  support  and  compel  the  enforcement 
of  the  laws.  If  our  people  would  show  for  sani- 
tary precautions  and  regulations  the  sympathetic 
interest  which  is  deserved,  the  authorities  who 
administer  the  health  laws  would  not  be  indifferent. 
Wherever  a city  or  town  has  provided  for  its 
people  a proper  local  board  of  health,  with  an  in- 
telligent, energetic  medical  man  as  its  executive 
officer,  the  result  has  been  satisfactory,  because 
physicians,  better  than  the  ordinary  citizen,  know 
what  can  be  accomplished  as  well  as  what  is 
needed. 

There  is  an  impression  that  the  State  Board  of 
Health  is  endowed  with  an  authority  similar  to,  if 
not  greater  than,  that  of  local  boards.  This  is  an 
error.  The  functions  of  the  State  board  are  largely 
advisory;  its  powers  as  a purely  executive  body, 
to  make  orders  and  enforce  them,  are  quite  limited 
and  are  inferior  to  those  of  the  local  board  of 
health  of  the  smallest  town  in  the  State.  It  has 
authority  to  make  investigations  concerning  the 
causes  of  disease,  to  diffuse  sanitary  information 
among  the  people,  to  conduct  experiments  relative 
to  the  disposal  of  sewage,  to  recommend  measures 


44 


THE  MEDICAL  PROFESSION 


for  the  prevention  of  the  pollution  of  the  water 
supplies  of  cities  and  towns,  and  to  advise  persons 
or  corporations  concerning  proposed  water  supplies 
or  plans  for  sewage-disposal,  its  recommendations 
and  advice  being  a preliminary  requisite  before 
legislative  action.  It  has  special  duties  assigned 
to  it  with  reference  to  the  adulteration  of  foods 
and  drugs,  and  may,  by  its  agents,  bring  offenders 
to  trial.  Without  doubt,  the  fact  that  the  field  of 
its  operations  is  comprehensive,  untrammelled  by 
municipal  limits  and  embracing  whole  communities 
and  large  territories,  adds  value  to  its  conclusions 
and  recommendations  by  relieving  them  of  local 
or  sectional  influences.  It  is  a pleasure  to  ac- 
knowledge publicly  that,  in  all  its  investigations, 
the  board  has  had  the  hearty  co-operation  and 
assistance  of  the  members  of  this  Society. 

But  the  cynic  will  ask,  of  what  use  is  all  this 
cumbrous,  expensive  and  complicated  sanitary  ma- 
chinery ? Of  what  value  has  it  been  to  the  State? 
Do  not  epidemic  diseases  prevail  just  as  they  did 
before  all  this  legislation  was  piled  up  for  our 
admiration?  Has  not  pandemic  influenza  stalked 
defiantly  around  the  world  again  and  again  in  the 
last  three  years,  without  the  least  hindrance  from 
any  source?  Do  not  scarlatina  and  diphtheria 
enter  our  households  and  take  possession  in  spite 
of  all  precautions,  official  and  personal,  devised  to 
bar  them  out?  Do  not  the  children  die  by  hun- 
dreds in  August,  and  the  grand-parents  perish  by 
the  score  in  March,  just  as  they  did  a century  ago? 
Has  tuberculosis  been  controlled? 


AND  THE  COMMONWEALTH. 


45 


To  all  such  pessimistic  questioning,  full  answer 
has  been  made  in  the  impressive  address  to  which 
you  listened  three  years  ago,1  and  in  the  thought- 
ful essay2  of  last  evening.  It  is  unnecessary  for 
me  to  add  to  their  authoritative  statements.  But 
it  is  not  improper  to  remind  the  sceptic  that  the 
general  mortality  rate  has  been  made  to  diminish; 
that  the  average  duration  of  life  has  been  appre- 
ciably increased;  that  in  communities  which  use 
vaccination  with  reasonable  fidelity,  small-pox  is 
rare  enough  to  be  a luxury;  that  typhus  fever, 
once  so  common,  is  now  a genuine  medical  curios- 
ity, and  to  most  physicians  is  as  unfamiliar  a 
subject  for  Ira”  clinical  study  as  a case  of  the 
plague.  Is  it  of  no  consequence,  moreover,  that 
dwelling-house  architecture  has  followed  the  ad- 
monitions of  physicians  and  sanitarians  and  that 
ventilation  and  drainage  are  no  longer  left  to 
chance?  Is  it  of  no  importance  that  the  water- 
supplies  of  the  State  are  more  carefully  protected 
from  pollution  than  ever  before,  and  that  every 
new  supply  is  critically  tested  in  all  its  relations, 
physical,  chemical  and  biological,  before  it  is 
accepted?  Is  it  of  no  significance  that  the  men 
and  women  of  to-day  find  in  athletic  exercise  and 
out-door  recreation  the  surest  road  to  robust 
health?  These  are  some  of  the  queries  that  are 
suggested  by  doubts  of  the  unbeliever  in  sanitary 
teachings  aud  practice.  To  you,  who  have  always 
been  in  harmony  with  the  progressive  spirit  in 

1 The  Annual  Address  for  1889,  by  Dr.  H.  P.  Walcott. 

2 The  Shattuck  Lecture  for  1892,  by  Dr.  J.  F.  A.  Adams. 


46 


THE  MEDICAL  PROFESSION 


Massachusetts  which  is  embodied  in  her  health 
laws,  obstructive  criticism  will  appear  unworthy 
of  serious  reply.  Preventive  medicine  looks  to 
the  future  hopefully.  Many  of  its  problems  will 
be  solved  by  the  trained  bacteriologist  whose 
greatest  achievements  are  still  before  him.  Public 
sentiment  will  approve  more  stringent  methods 
in  the  preventive  management  of  communicable 
diseases.  Tenement  blocks  for  the  poor  will  be 
better  adapted  to  their  purposes.  And  in  all 
measures — scientific,  practical,  administrative — the 
commonwealth,  in  the  future  as  in  the  past,  will 
look  to  us  and  our  successors  as  its  best  allies  and 
most  efficient  ^agents  for  the  protection  of  the 
people  from  harmful  influences  affecting  life  and 
health. 

There  is  one  other  department  of  the  State’s 
affairs  to  which  I wish  to  refer  briefly,  because  in 
its  administration  our  profession  has  been  con- 
spicuous. I allude  to  that  chapter  of  the  Public 
Statutes  entitled  " Of  Medical  Examiners.”  The 
Massachusetts  law  relating  to  inquests  is  no  longer 
on  trial  as  a questionable  innovation;  it  has  passed 
the  experimental  stage  and  is  now  as  permanent 
and  stable  as  any  part  of  the  judicial  system  of  the 
commonwealth.  The  practical  experience  of  fifteen 
years  has  demonstrated  that  the  legislature  of 
1877  enacted  a law  of  exceptional  value,  thoroughly 
adapted  to  fulfil  the  purposes  for  which  it  was 
designed.  In  all  this  period,  only  two  material 
amendments  have  been  made,  and  neither  of  these 
modified  the  essential  principles  and  methods  pecu- 


AND  THE  COMMONWEALTH. 


47 


liar  to  the  original  statute;  one  of  these  changes 
simplified  the  disposal  of  the  bodies  of  strangers 
found  dead,  and  the  other  required  publicity  of  the 
official  records  of  medical  examiners.  In  all  its 
main  features,  then,  the  new  Massachusetts  method 
of  conducting  inquests  has  remained  without 
modification  since  it  was  put  upon  trial;  and,  as  a 
piece  of  experimental  legislation,  radically  de- 
parting from  traditional  and  familiar  usages,  it  has 
accomplished  most  gratifying  and  successful  re- 
sults. And  the  reason  for  this  is  easy  to  com- 
prehend. When  the  general  court  of  1877  de- 
termined that  the  venerable  but  discredited  and 
abused  system  of  investigating  violent  deaths  by 
means  of  coroners  and  their  juries  had  outlived  its 
usefulness  in  Massachusetts,  it  was  under  an  obli- 
gation to  substitute  a legal  mechanism  that  should 
be  simple,  practicable,  economical  and  trustworthy. 
And  this  it  did  with  such  consummate  success  as  to 
challenge  admiration.  It  provided  a procedure 
that  accomplished  the  desired  end  promptly  and 
without  friction.  It  differentiated  the  purely 
medical  elements  of  the  inquiry  from  those  which 
were  essentially  judicial.  It  created  a medical 
officer  whose  sole  function  it  should  be  to  deter- 
mine, in  any  case  of  mysterious  or  violent  death, 
the  anatomical  proofs  of  unlawful  acts  entering 
into  the  cause  of  death;  and  it  made  his  conclu- 
sions upon  this  purely  medical  question  the  basis 
for  further  inquest-proceedings  by  judges  trained 
in  the  methods  of  taking  and  sifting  evidence  and 
required  to  solve  the  problem  of  accountability  in 


48 


THE  MEDICAL  PROFESSION 


the  case.  The  initial  stage,  then,  of  the  inquest 
is  always  the  medical  determination  of  the  cause 
and  manner  of  the  death,  and  for  this  determination 
the  law  provides  ample  resources. 

It  is  obvious  that  the  responsibility  resting  on 
the  medical  examiner  in  the  discharge  of  such  a 
duty  is  not  of  a trivial  character.  In  simple  cases, 
even,  where  his  observations  are  but  confirmatory 
of  evidence  clearly  established  beforehand,  he  can- 
not regard  his  task  as  a slight  one.  Suppose  a 
person  to  have  been  murdered  by  a pistol-shot 
wound  in  the  presence  of  witnesses;  the  tracing 
of  the  missile  through  the  dead  body,  with  accurate 
study  of  its  course,  direction  and  lesions  in  the 
various  organs  and  tissues,  made  and  described  in 
such  a manner  as  to  be  clearly  intelligible  to  a 
jury  and  creditable  to  the  witness,  is  an  exercise 
which  calls  forth  the  best  activities  of  the  medical 
mind.  But  such  instances  are  not  those  which  test 
the  merits  of  our  Massachusetts  system  of  inquests 
most  conclusively.  The  highest  evidence  of  its 
value  is  found  in  the  mysterious  cases  in  which 
there  is  entire  want  of  such  information  as  may 
furnish  a correct  guide  to  the  examiner  in  his  pro- 
ceedings; or  in  cases  wherein  the  facts  are  pur- 
posely and  wilfully  concealed,  or  falsely  stated, 
with  the  intent  to  cover  a crime.  A young,  un- 
married woman  dies  suddenly  in  the  office  of  a 
physician,  to  whom  she  has  gone  for  advice  and 
treatment;  if  the  medical  examiner  believes  the 
doctor’s  ready  statement  and  his  circumstantial 
account  of  the  affair,  he  will  call  the  cause  of  the 


AND  THE  COMMONWEALTH. 


49 


death  " heart  failure  ” and  demonstrate  his  own 
failure  in  the  discharge  of  a delicate  duty;  but  if 
he  recognizes  his  obligation  as  a public  officer, 
standing  between  the  community  and  the  commis- 
sion of  crime,  he  will  push  his  investigation  beyond 
the  voluntary  statements  of  interested  persons, 
and  he  may  be  rewarded  by  finding  that  the  fatal 
issue  was  the  result  of  an  abortionist’s  manipula- 
tions upon  a pregnant  womb,  admitting  air  to  the 
blood-vessels  and  causing  a death  by  unlawful 
violence.  Such  an  instance  illustrates  the  possi- 
bilities for  usefulness  and  efficiency  which  our 
system  offers;  it  shows  that  to  the  qualities  of 
ability,  discretion  and  learning,  which  the  statute 
requires  of  medical  examiners,  there  may  properly 
be  added  a wholesome  incredulity  in  doubtful 
cases,  a conservative  agnosticism  which  refuses  to 
believe  that  which  is  not  demonstrated. 

That  the  Massachusetts  method  of  conducting 
these  inquiries  is  acceptable  is  shown  by  the  entire 
absence  of  real  criticism,  as  well  as  by  the  cordial 
approval  of  jurists  who  have  studied  its  details. 
It  has  commended  itself  to  the  authorities  of  other 
States,  who  find  in  it  the  indications  of  a great  ad- 
vance in  comparison  with  the  clumsy  and  inverted 
coroner  system.  It  is  quiet  in  its  operation.  It 
does  not,  by  the  exercise  of  noisy  authority,  upset 
and  demoralize  households  overshadowed  by  re- 
cent grief.  Its  results  are  certain  and  tangible. 
It  secures  for  use  at  trials  for  homicide  the  testi- 
mony of  trained  men  well  fitted  by  experience  to 
be  witnesses.  It  has  absolutely  eliminated  all 
4 


50 


THE  MEDICAL  PROFESSION 


scandal  and  sensationalism  from  inquest  proceed- 
ings. It  has  saved  money  to  the  county  treasuries, 
at  the  same  time  affording  better  service  to  the 
people.  Incidentally,  it  has  gathered  a large 
amount  of  valuable  medico-legal  observations  in 
the  transactions  of  the  society  conducted  by  the 
medical  examiners,  and  it  has  supplied  material  for 
a full  annual  course  of  practical  study  in  legal 
medicine  to  the  students  of  the  Harvard  Medical 
School. 

The  credit  for  suggesting  and  initiating  the  re- 
form which  has  wrought  these  results,  and  for 
framing  the  legislative  bill  whose  enactment  made 
the  reform  practical,  belongs  to  a single  member 
of  the  Suffolk  bar.1  The  credit  for  making  the 
change  an  accomplished  fact  belongs  largely  to  a 
few  representative  members  of  this  Society,  who 
persistently  and  effectively  urged  the  arguments  in 
its  favor,  and,  in  the  face  of  determined  opposition, 
convinced  the  legislature  that  a new  method  of 
inquests  was  imperatively  needed.  But  the  credit 
of  making  the  law  itself,  once  enacted,  a success, 
rests  with  the  medical  men  who  have  been  com- 
missioned to  administer  it.  Left  to  the  care  of  a body 
of  selfish,  reckless  or  weak  men,  appointed  indis- 
criminately, this  law  would  have  quickly  fallen  into 
disrepute.  But  it  has  not  been  so  left.  The  corps 
of  medical  examiners  in  commission  to-day  repre- 
sents a selection  made  with  care  by  the  executive 
of  the  State.  From  the  time  of  the  first  appoint- 
ments down  to  the  present,  the  office  has  been 


1 Theodore  H.  Tyndale,  Esq. 


AND  THE  COMMONWEALTH. 


51 


kept  out  of  the  demoralizing  influences  of  partisan 
politics,  and  for  this  the  community  should  be 
cordially  grateful.  The  large  quota  which  this 
Society  has  supplied  to  the  present  ranks  of  this 
useful  corps1  contains  jsome  of  the  best  representa- 
tives of  the  medical  profession  in  Massachusetts; 
the  same  is  true  of  the  recent  past,  and  when  I 
recall  to  your  minds  the  names  of  Hosmer,  and 
Cogswell,  and  Russell,  and  Winsor,  among  the 
dead,  who  while  living  served  in  this  relation,  you 
will  not  marvel  that  the  law  has  been  administered 
successfully,  for  it  has  been  administered  by  con- 
scientious medical  men  striving  faithfully  to  per- 
form their  duty.  In  the  last  fifteen  years,  these 
medical  examiners,  drawn  largely  from  the  Massa- 
chusetts Medical  Society,  have  investigated  the 
circumstances  of  more  than  twenty  thousand 
deaths,  and  it  is  not  an  exaggeration  to  say  that 
no  method  has  yet  been  suggested  by  which  this 
great  medico-legal  service  could  have  been  dis- 
charged so  efficiently,  with  proper  guarantees  for 
the  protection  of  the  interests  of  society  and  the 
administration  of  justice. 

From  this  allusion  to  a special  medico-legal 
function  of  great  responsibility  which  our  Fellows 
are  discharging  acceptably,  the  transition  is  easy 
to  a consideration  of  the  relationship  which  our 
profession,  in  general,  bears  to  the  judicial  depart- 
ment of  the  commonwealth. 

III.  To  state  the  proposition  broadly,  the 
medical  man  finds  himself  in  a court  of  justice 


Sixty- four  out  of  seventy- three. 


52 


THE  MEDICAL  PROFESSION 


under  the  same  exigencies  which  occur  to  the 
ordinary  citizen,  service  on  the  jury  alone  ex- 
cepted. He  is  either  a plaintiff  seeking  reparation 
for  alleged  wrong,  or  a defendant  meeting  a charge 
of  wrong-doing,  or  a witness  summoned  to  testify 
in  an  issue  to  wdiich  others  are  the  parties.  Al- 
though these  are  the  three  varieties  of  necessity 
which  take  him,  as  they  take  others,  out  of  the 
routine  of  daily  life,  and  subject  him  to  novel  ex- 
periences more  or  less  unpleasant,  he  is  conscious 
that  his  vocation  as  a physician  places  him  in  a 
peculiar  attitude  unlike  that  of  the  layman.  And 
it  is  these  peculiarities  characterizing  our  position 
in  court  that  I now  ask  you  to  consider  with  me. 

As  a plaintiff,  appealing  to  the  judicial  depart- 
ment of  the  State  to  settle  the  issues  of  a quarrel 
or  to  determine  the  money  value  of  imputed 
wrongs,  or  to  solve  for  him  other  problems  of  a 
similar  nature,  involving  the  law  of  contract,  or  tort, 
or  trespass,  the  physician  is  a spectacle  of  extreme 
rarity.  I think  it  can  be  claimed  with  confidence 
that  medical  men,  whatever  their  other  character- 
istics may  be,  are  not  noted  for  litigiousness. 
They  do  not  readily  engage  in  contention.  They 
are  generally  too  busy  to  find  in  the  behavior  of 
their  fellow-men  the  occasion  for  law-suits.  Al- 
though there  is  a certain  hypersesthesia  which  is 
said  to  apply  to  the  profession  in  connection  with 
the  subject  of  medical  etiquette,  this  never  finds 
its  way  to  the  gates  of  the  temple  of  justice;  and 
in  the  ordinary  affairs  of  life  the  doctor  of  medicine 
is  seldom  found  on  the  hither  side  of  the  abbre- 


AND  THE  COMMONWEALTH. 


53 


viatecl  Latinism  which  in  the  court  docket  stands 
as  a low  barrier  over  which  the  parties  to  a suit 
defy  each  other.  If  litigation  brought  into  being 
by  physicians  were  the  only  business  which  en- 
gaged the  attention  of  juries  or  equity  sessions, 
the  courts  would  have  long  vacations  and  the 
practitioners  of  law  would  find  other  more  pro- 
fitable employment.  The  doctor  in  court  as  a 
plaintiff,  then,  need  not  detain  us  longer. 

But  with  the  doctor  in  court  as  a defendant, 
strenuously  bending  his  energies  and  using  his 
resources  to  resent  an  imputation  upon  his  skill 
and  care,  the  case  presents  a theme  of  serious 
interest,  for  it  concerns  the  whole  domain  of  our 
legal  rights  as  medical  practitioners.  Most  of  the 
suits  in  which  physicians  are  the  defendants  are 
actions  instituted  by  former  patients  to  recover 
damages  for  alleged  malpractice.  The  fact  sug- 
gests, at  the  very  outset,  some  consideration  of 
the  obligations  which  the  law  imposes  on  physi- 
cians and  surgeons  in  their  treatment  of  the  sick 
and  injured  persons  who  employ  them. 

To  the  medical  man  as  he  stands  in  the  presence 
of  a person  who  has  summoned  him  for  professional 
aid  and  counsel  in  time  of  suffering,  the  law  says: 
" You  were  under  no  obligation  to  respond  to  the 
summons  which  called  you  to  this  bedside.  This 
person  had  no  lawful  claim  upon  you  for  your 
services.  However  strongly  selfish  interest,  ex- 
pediency, prudence,  or  humanity  may  have  urged 
you  hither,  you  had  the  right  to  decline  the  call 
and  to  remain  at  home  in  comfort,  if  you  so 


54 


THE  MEDICAL  PROFESSION 


desired.  But  having  responded,  and  having  under- 
taken the  care  of  this  case,  you  have  assumed 
certain  obligations  which  the  law  fully  recognizes, 
and  which  you  cannot  avoid,  except  at  the  risk  of 
losing  both  money  and  reputation. 

" Your  obligation  is  that  of  an  implied  contract 
which,  though  less  formal  and  specific  than  an 
express  contract  executed  in  writing,  is  not  less 
binding  it  its  nature. 

"You  must  continue  in  attendance  here,  and 
may  not  abandon  the  case  or  desert  the  patient 
without  reasonable  cause,  or  without  allowing  suffi- 
cient time  for  the  procurement  of  other  attendance. 

"In  undertaking  the  medical  care  of  this  person, 
you  shall  attend  upon  him  with  reasonable  dili- 
gence and  skill,  and  you  will  be  answerable  to  him 
for  any  want  of  ordinary  care,  diligence  and  skill 
which  results  in  his  injury. 

"Under  the  obligations  of  the  implied  contract, 
in  accordance  with  which  you  are  employed,  you 
do  not  warrant  or  insure  that  all  the  results  of 
your  attendance  shall  be  satisfactory,  that  there 
shall  be  a perfect  recovery,  or  that  your  treatment 
shall  effectually  stand  in  the  way  of  unexpected 
complications. 

"Your  judgment  relative  to  the  application  of 
certain  remedies  or  modes  of  treatment  may  err,  and 
the  law  will  not  hold  you  responsible  for  ill  results 
growing  out  of  errors  of  judgment.  But  you  en- 
gage, under  the  law,  to  treat  this  case  in  such  a 
way  that  any  injury  which  the  patient  suffers,  in  its 
course  or  subsequently,  cannot  reasonably  be 


AND  THE  COMMONWEALTH. 


55 


traced  to  a neglect  of  competent  and  ordinary  care 
and  skill  on  your  part  as  its  proximate  cause.” 

Such  are  the  principles  established  by  the  com- 
mon law  as  the  intangible  environment  of  the 
medical  or  surgical  attendant  for  his  guide  and 
control  under  the  usual  circumstances  of  his  em- 
ployment. They  are  the  rules  which  underlie  and 
govern  those  actions  of  tort  wherein  the  claim  is 
set  up  that  negligence  and  unskilfulness  on  the 
part  of  the  medical  attendant  have  caused  injury 
and  distress  to  his  patient,  and  that  money  will  be 
the  proper  remedy  to  heal  the  wrong  imputed  to 
him.  And  it  is  reassuring  to  record  the  fact  that 
these  rules  and  principles,  however  difficult  they 
may  seem  to  be  as  practical  guides,  have  been  in 
effect  a shield  rather  than  a menace  to  the  inter- 
ests of  defendant  physicians,  and  that  the  cases 
are  fortunately  few  in  number  in  which  it  can 
be  said  that  unjust  and  unfounded  verdicts  have 
been  returned  by  juries  upon  the  issue  of  impu- 
ted negligence  and  unskilfulness;  where  verdicts 
against  the  defendant  have  been  recorded,  the 
testimony  has  usually  left  little  question  that  the 
decision  was  right,  because  the  negligence  charged 
was  really  inexcusable  on  any  reasonable  ground. 

But  while  this  is  true  concerning  the  issue  of 
suits  for  damages,  it  is  also  true  that  the  law 
interposes  no  obstacle  in  the  way  of  initiating  such 
suits.  Let  us  suppose  that  the  medical  attendant 
has  done  all  that  the  law  requires  in  the  care  of 
his  case,  that  he  has  to  the  best  of  his  ability  used 
ordinary  and  reasonable  skill  and  diligence  and 


56 


THE  MEDICAL  PROFESSION 


has  avoided  all  measures  that  could  be  criticised 
as  experimental,  he  may  nevertheless,  through 
circumstances  and  conditions  over  which  he  has 
no  control,  find  himself  a defendant  in  an  action 
of  tort  brought  by  his  patient.  Perhaps  the  dis- 
located shoulder  which  he  has  reduced  months 
ago,  with  proper  attention  to  all  surgical  details, 
persists  in  giving  pain  and  in  refusing  to  resume 
its  mobility.  Perhaps  the  fractured  femur  is  re- 
stored to  duty  with  a permanent  and  irremediable 
though  unavoidable  shortening.  Perhaps  the 
broken  forearm,  when  taken  out  of  the  splints, 
has  an  uncomely  deformity  in  spite  of  the  most 
assiduous  care.  Or,  in  a puerperal  case,  perhaps 
the  woman  on  her  recovery  finds  that  she  has  a 
disgusting  leakage  of  urine  through  a fistula  in 
the  vesico-vaginal  septum,  and  she  remembers  that 
the  doctor  used  forceps  to  deliver  her;  but  she 
forgets  that  she  consented  to  their  use  only  after 
hours  of  ineffectual  labor,  during  wdiich  the  child’s 
head  lay  low  down,  without  progress,  pressing 
upon  the  very  spot  that  is  now  the  seat  of  her 
misery.  In  any  of  these  events,  whatever  has 
happened  out  of  the  ordinary  course,  it  is  easiest 
to  blame  the  attending  physician  for  it;  and  the 
next  step  is  equally  easy,  the  initial  step  in  the 
proceedings  for  what  is  called  " getting  satisfac- 
tion.” However  clear  the  attendant’s  conscience 
may  be  that  he  is  not  blameworthy;  however 
positive  his  memory  may  be  that  he  has  done 
nothing  and  has  omitted  nothing  in  his  attendance 
that  was  in  violation  of  the  soundest  teaching  and 


AND  THE  COMMONWEALTH. 


57 


the  tests  of  experience,  these  will  not  save  him 
from  the  trouble  and  expense  of  defending  him- 
self against  the  charge  of  negligence  and  unskil- 
fulness as  it  is  formulated  and  openly  made  in 
court.  The  story  is  an  old  and  familiar  one. 
Too  often  the  motive  that  initiates  the  suit  and 
urges  it  forward  is  a most  unworthy  one,  and  is 
scarcely  to  be  distinguished  from  the  wickedness 
of  blackmail.  Too  often  it  is  nurtured  and  stimu- 
lated by  lawyers  more  hungry  for  plunder  than 
ambitious  for  a good  name.  Too  often  it  is  encour- 
aged by  the  unfriendly  words  and  actions  of  pro- 
fessional rivals.  Sometimes,  no  doubt,  a suit  is 
well  founded  and  the  complainant  really  believes 
in  the  justice  of  the  complaint,  and  is  candid  in 
accusing  the  physician  of  carelessness;  but  such 
apparently  well-founded  instances  are  exceptional, 
as  we  all  know,  and  they  cannot  bear  comparison 
with  the  number  of  suits  brought  with  discreditable 
motives.  Over  these  prosecutions,  the  physician 
is  powerless  to  bring  any  control ; however  strong 
his  defence  may  be,  he  cannot  prevent  a trial,  with 
all  its  annoyances,  risks  and  costs,  except  by 
adopting  the  course  of  paying  money  to  settle  the 
claim  out  of  court, — a course  which  any  self- 
respecting  medical  man  will  not  adopt,  though 
sorely  tempted  to  escape  thereby  all  the  wretched 
miseries  of  a jury  trial. 

This  constant  menace  of  unjust  lawsuits  which 
every  physician,  and  especially  every  surgeon,  has 
constantly  before  him,  as  the  law  is  now  practised, 
is  an  evil  which  we  may  properly  criticise  and 


58 


THE  MEDICAL  PROFESSION 


denounce.  There  is  one  remedy  for  it  which 
might  well  have  general  application;  if  every  com- 
plainant of  the  class  we  are  considering  were  re- 
quired, upon  initiating  the  suit,  to  demonstrate  his 
sincerity  in  the  justice  of  his  cause  by  filing  a 
sufficient  bond,  with  sureties,  to  indemnify  the  de- 
fendant physician  for  all  the  costs  of  the  trial  if 
the  jury  should  give  a verdict  unfavorable  to  his 
claim,  we  should  hear  far  less  of  these  iniquitous 
suits  than  we  now  do. 

It  has  often  been  suggested  that,  in  view  of 
their  liability  to  unwarranted  claims  for  malprac- 
tice, medical  men  would  do  well  to  organize  co- 
operative defence  unions  for  their  own  protection. 
Such  a suggestion  has  much  to  make  it  attractive, 
and  it  has  actually  borne  fruit  in  England  in  a 
flourishing  and  fully  equipped  association  pre- 
pared to  assist  its  members  when  they  are  brought 
to  bar  as  the  victims  of  irritable,  or  avaricious,  or 
depraved  human  nature.  The  way  is  so  easy  for 
ungrateful  or  unprincipled  convalescents  to  institute 
charges,  and  it  is  so  burdensome  and  costly  to  re- 
fute such  charges,  that  a medical  defence  union 
appeals  to  the  imagination  very  strongly  as  a real 
relief.  But  while  such  a fellowship  might  serve 
to  deter  the  unscrupulous  from  bringing  suits 
against  physicians,  in  such  suits  as  are  pressed  to 
trial,  the  appearance  of  a medical  defendant  backed 
by  the  money  and  the  sympathy  of  a numerous 
company  of  his  professional  brethren  might  have 
a reactionary  effect  upon  jurymen,  who  are  notori- 
ously ready  to  render  verdicts  against  corporations 
and  corporate  interests. 


AND  THE  COMMONWEALTH. 


59 


But  the  incivilities  of  the  so-called  civil  suits 
which  we  have  been  studying  do  not  exhaust  the 
opportunities  offered  to  physicians  to  become  de- 
fendants in  legal  proceedings.  There  is  a kind 
or  a degree  of  negligence  and  unskilfulness  which, 
while  offering  no  bar  to  an  action  of  tort,  is  suffi- 
cient ground  for  the  State’s  interference  and  may 
become  a subject  of  investigation  on  a criminal 
charge.  It  is  when  the  death  of  a patient  is 
charged  to  the  carelessness  or  ignorance  of  the 
attending  physician  that  the  machinery  for  crimi- 
nal prosecutions  is  set  in  motion  for  his  discipline. 
All  law-writers  use  nearly  identical  terms  in  their 
definition  of  the  degree  of  dereliction  which  con- 
stitutes criminal  malpractice;  and  this  general 
definition  is  so  tersely  expressed  by  Mr.  Bishop 
in  his  work  on  Criminal  Law  that  I quote  it:  "If 
a person,  whether  a medical  man  or  not,  profess 
to  deal  with  the  life  or  health  of  another,  he  is 
bound  to  use  competent  skill  and  sufficient  atten- 
tion ; and  if  he  cause  the  death  of  another  through 
a gross  want  of  either,  he  will  be  guilty  of  man- 
slaughter.” 

It  is,  then,  that  degree  of  malpractice  which  the 
law  characterizes  as  " gross  ” which  renders  the 
practitioner  liable  to  punishment  under  a criminal 
charge.  As  in  the  law  of  civil  malpractice,  so 
here,  definitions  hardly  define;  for  the  term 
" gross  ” conveys  a relative  and  not  an  absolute 
meaning,  and  in  many  cases  where  a man’s  liberty, 
or  possibly  his  life,  depended  on  the  decision,  a 
real  difficulty  might  easily  arise  in  applying  it. 


60 


THE  MEDICAL  PROFESSION 


When  we  remember  that  such  a decision  is  to 
come  from  twelve  unenlightened  and  perhaps 
prejudiced  jurymen,  we  may  well  contemplate 
with  something  akin  to  awe  the  immunity  of  med- 
ical men,  and  feel  a sense  of  gratitude  that  all 
deaths  are  not  made  the  subject  of  judicial  in- 
vestigation. On  the  other  hand,  however  arbitrary 
the  criminal  law  may  be  in  theory,  the  leading 
cases  which  are  reported  demonstrate  that,  in 
practice,  medical  defendants  under  the  accusation 
of  criminal  negligence  have  been  dealt  with 
leniently. 

Chief  Justice  Parsons,  in  his  charge  to  the  jury 
in  the  notorious  Thomson  case,  said  there  was  no 
reasonable  doubt  that  the  patient  had  died  by  the 
unskilful  treatment  of  the  prisoner  and  that  the 
latter’s  ignorance  was  very  apparent;  but  that  if 
the  prisoner  acted  with  an  honest  intention  and 
expectation  of  curing  the  deceased  by  his  dosing, 
although  death,  unexpected  by  him,  was  the  con- 
sequence, he  was  not  guilty  of  either  murder  or 
manslaughter.  The  defendant’s  acquittal  followed 
promptly.  This  statement  of  the  law  served  as  a 
precedent  in  Massachusetts  for  seventy-five  years. 
It  has  been  somewhat  modified  within  the  past 
ten  years,  the  Supreme  Court  having  set  aside  a 
convicted  charlatan’s  reliance  upon  it ; in  this 
latter  case,  it  was  decided  that  a verdict  of  guilty 
was  correct  because  the  death,  which  followed  the 
prolonged  swathing  of  ajwoman’s  body  with  flan- 
nels saturated  with  petroleum,  was  the  result  of 
reckless  and  foolhardy  presumption  judged  by  the 


AND  THE  COMMONWEALTH. 


61 


standard  of  what  would  he  reckless  in  a man  of 
ordinary  prudence  under  the  same  circumstances. 

But  it  is  incomprehensible  that  any  individual 
in  my  present  audience  can  have  any  personal  or 
direct  interest  in  these  legal  decisions  concerning 
homicidal  malpractice.  The  judicial  history  of 
Massachusetts  contains  no  mention  of  any  repu- 
table medical  man  in  the  position  of  a defendant 
indicted  for  the  destruction  of  his  patient’s  life 
through  gross  carelessness  or  reckless  and  fool- 
hardy presumption.  Such  an  exhibition  is  mo- 
nopolized by  the  representatives  of  quackery. 

Let  us  turn,  then,  to  a far  more  familiar  relation- 
ship between  medical  men  and  the  courts  of  law, 
that  sustained  by  physicians  as  witnesses.  Rightly 
considered,  the  function  of  a medical  witness 
establishes  one  of  the  most  dignified  and  honor- 
able positions  in  the  service  of  the  commonwealth 
which  a member  of  the  medical  profession  can 
discharge.  That  the  function  has  been  abused 
and  has  experienced  a measure  of  disrepute,  is 
quite  true.  That  there  are  certain  features  of  it 
which  are  deplorable  and  most  unsatisfactory  is 
also  true.  But  it  is  likewise  true  that,  with  all  the 
criticism  and  disparagement  of  which  it  has  been 
made  the  subject,  medical  evidence  will  continue 
to  be  an  indispensable  element  in  judicial  proceed- 
ings, and  the  medical  witness,  if  he  be  properly 
equipped  for  his  service,  if  he  be  duly  appreciative 
of  the  real  responsibilities  which  rest  upon  him, 
and  if  he  studiously  avoid  certain  well-defined 
errors  and  evils  which  have  grown  up  in  connection 


62 


THE  MEDICAL  PROFESSION 


with  medical  testimony,  has  it  in  his  power  on 
every  occasion  to  command  the  respect  of  all  who 
observe  him,  and  to  be,  in  the  court  of  justice  as 
in  the  sick-room,  the  representative  of  sound  learn- 
ing and  of  manly  deportment. 

It  has  been  customary,  in  treating  of  medical 
evidence,  to  classify  medical  witnesses  as  of  two 
distinct  varieties,  according  to  the  assumed 
character  of  their  testimony ; they  are  regarded  as 
ordinary  witnesses  if  they  testify  to  facts,  and  as 
expert  witnesses  if  they  express  opinions  or  under- 
take to  interpret  facts.  This  purely  arbitrary  dis- 
tinction has  had  a mischievous  tendency  affecting 
every  medical  witness,  hampering  his  usefulness 
on  the  witness-stand  and  opening  the  way  to  faulty 
practices.  The  differentiation  of  facts  from  opin- 
ions is  of  service  practically,  so  far  as  physicians 
are  concerned,  in  establishing  a basis  for  remuner- 
ation and  in  impressing  juries  favorably  by  creating 
a presumption  of  superior  attainments  on  the  part 
of  so-called  experts.  But  if  we  recall  the  usual 
methods  under  which  medical  witnesses  are  em- 
ployed, we  shall  see  how  artificial  is  such  an  attempt 
at  classification.  The  truth  is  that  nearly  every 
piece  of  medical  testimony  is  a composite  of  facts 
and  opinions  in  which  the  facts  largely  predomi- 
nate. But  they  are  medical  facts,  the  correct  de- 
termination and  statement  of  which  require  medical 
knowledge,  skilled  training,  and  a special  aptitude. 
In  a trial  for  homicide,  for  example,  the  medical 
examiner  who  describes  the  post-mortem  appear- 
ances observed  at  the  autopsy  is  dealing  with 


AND  THE  COMMONWEALTH. 


63 


anatomical  facts,  and  the  correct  inference  of  the 
cause  and  manner  of  the  death  rests,  as  an  incident 
only,  on  these  many  ascertained  data,  the  fruit  of 
his  observation.  So,  too,  when  the  chemist  ex- 
hibits to  the  jury  the  arsenical  mirror  which  is  the 
result  of  his  analysis  of  suspected  organs  or  rem- 
nants of  food,  he  is  submitting,  not  opinions,  but 
incontrovertible  facts.  When  Professor  Wood,  in 
a recent  capital  trial  in  a neighboring  State,  de- 
scribed the  methods  and  stated  the  results  of 
hundreds  of  micrometric  observations  of  blood- 
globules  recovered  by  him  from  stains  upon 
clothing  worn  by  the  accused,  and  testified  that 
his  observations  were  consistent  with  the  view 
that  the  stains  were  made  with  human  blood,  he 
was  giving  medical  facts.  When  Professor  Austin 
Flint  testified  that  in  his  microscopic  and  chemical 
examination  of  the  material  found  under  the  finger- 
nails and  on  the  clothing  of  a degraded  criminal 
accused  of  the  murder  of  a woman  and  the  muti- 
lation of  her  body,  he  detected  crystals  of  tyrosine 
and  other  substances  which  must  have  come  from 
no  other  part  of  the  intestinal  tract  than  that  found 
cut  open  in  the  victim’s  abdomen,  he  was  giving 
an  indisputable  physiological  demonstration  of 
objective  facts,  which  fastened  the  guilt  of  the 
homicide  upon  the  prisoner.  When  Professor 
Jeffries  Wyman,  in  the  memorable  case  which  so 
engrossed  public  interest  in  this  community  in 
1850,  established  by  his  evidence  the  identification 
of  a mutilated  human  body,  the  work  that  he  did 
was  not  guess-work,  but  was  again  a demon- 


64 


THE  MEDICAL  PROFESSION 


stration  based  upon  accurately  observed  anatomical 
material. 

These  are  illustrations  of  the  highest  type  of 
medical  testimony,  commonly  called  expert,  but 
really  an  extraordinary  grade  of  ordinary  testi- 
mony relating  to  facts.  The  same  principle  is 
seen  in  the  numerous  civil  suits  growing  out  of 
imputed  negligence,  whereby  accidental  injuries 
result.  The  testimony  of  medical  men  connected 
with  these  cases  is  largely  directed  to  the  descrip- 
tion of  symptoms  and  conditions  of  a purely 
physical  and  objective  character;  to  the  establish- 
ment of  the  proof  of  genuine  lesions  and  the 
elimination  of  what  is  subjective  or  feigned;  to 
the  reasonable  connection  of  well-ascertained 
causes  and  effects.  Even  in  the  comparatively 
rare  cases  in  which  a medical  man  answers  purely 
hypothetical  questions,  and  gives  his  opinion  upon 
assumed  facts,  of  which  he  has  no  personal  proof, 
the  examination  does  not  end  with  this  exhibition 
of  the  expert’s  technical  office,  but  wanders  away 
into  the  various  regions  of  medical  knowledge 
pertinent  to  the  questions  at  issue;  the  hypothe- 
tical recedes  from  view  and  the  actual  becomes 
prominent. 

Conversely,  the  physician  who  responds  to  a 
subpoena  as  an  ordinary  witness,  without  any  inti- 
mation that  his  testimony  will  extend  beyond 
simple  matters  of  fact,  is  generally  asked  some 
questions  when  on  the  witness-stand  which  call  for 
the  expression  of  an  opinion;  and  this  entitles  him 
to  recognition  and  remuneration  as  an  expert. 


AND  THE  COMMONWEALTH. 


65 


He  may  evade  the  dilemma  by  declining  to  answer 
the  questions,  and  may,  for  his  reward,  have  a 
mercenary  element  imputed  to  his  motives.  Or  he 
may  take  the  risk  of  personal  embarrassment  by 
attempting  to  formulate  on  the  spot  opinions  on 
difficult  issues  adroitly  presented.  In  either  event, 
the  fact  remains  that  a purpose  has  been  shown  to 
use  him  as  a medical  expert  when  his  call  to  court 
gave  no  suggestion  of  such  a purpose. 

The  conclusion,  then,  which  I wish  to  draw 
from  these  considerations  is  that  all  medical  testi- 
mony is  of  the  nature  of  skilled  service,  and  de- 
serves appreciation  as  such.  The  State  has  no 
right  to  place  the  usual  low  value  on  evidence 
which,  though  denominated  w ordinary,”  implies 
under  every  possible  contingency  an  adequate 
degree  of  learning,  skill  and  training  in  medicine. 
It  has  been  held  repeatedly  that  knowledge,  in 
science  or  art,  is  its  possessor’s  capital,  accumu- 
lated through  years  of  study  and  application;  and 
that  neither  the  commonwealth  nor  any  individual 
can  make  any  lawful  requisition  upon  that  capital 
without  substantial  reimbursement.  This  is  the 
well-recognized  and  universally  applied  rule 
governing  the  employment  of  medical  experts, 
who  go  to  court  to  state  opinions  with  facts. 
Why  should  not  the  same  rule  attach  to  the  ser- 
vices of  surgeons  and  physicians  who,  heeding  the 
peremptory  summons,  respond  as  witnesses  to  give 
evidence  of  clinical  facts,  of  physical  appearances, 
the  presence  or  absence  of  signs  and  symptoms, 
and  all  those  other  matters  the  correct  observation 
5 


66 


THE  MEDICAL  PROFESSION 


ancl  description  of  which  require  a definite  amount 
of  knowledge,  the  fruit  of  much  patient  study 
or  long  experience?  The  demand  which  in  the 
name  of  the  commonwealth  is  made  upon  medical 
men,  wasting  their  time  in  tiresome  delay,  in- 
terrupting their  professional  routine  of  duty, 
subjecting  them  to  disagreeable  and  irritating 
experiences,  extorting  from  them  facts  acquired 
under  the  confidential  relations  of  the  sick-room, 
is  not  one  which,  under  prevailing  conditions,  is 
answered  with  cordiality.  It  is  among  the  un- 
pleasant incidents  of  professional  life.  It  reminds 
us  that  of  all  departments  of  our  practical  work, 
the  medico-legal  service  is  the  only  one  which  we 
cannot  control,  or  evade,  or  transfer  to  others. 
The  call  of  a judicial  summons  is  imperative,  and 
physical  disability  will  alone  excuse  its  neglect. 
When,  therefore,  we  consider  the  nature  of  the 
testimony  which  the  medical  witness  will  impart, 
its  indispensable  value  in  determining  disputed 
questions,  and  the  degree  of  technical  knowledge 
required  for  its  correct  presentation,  we  do  not 
exceed  propriety  if  we  ask  that  the  State  shall  in 
some  way  provide  fit  methods  for  the  adequate 
reward  of  such  involuntary  service,  or  shall  place  all 
purely  medical  testimony  in  the  relation  now  held 
by  expert  testimony  and  subject  to  the  ordinary 
customs  of  preliminary  adjustment  and  agreement. 

One  other  feature  of  medical  testimony  solicits 
attention;  it  relates  to  the  deportment  of  the  wit- 
ness in  court.  The  ideal  medical  witness  possesses 
these  qualities:  his  demeanor  is  dignified  and  un- 


AND  THE  COMMONWEALTH. 


67 


constrained;  he  has  large  stores  of  well-seasoned 
knowledge;  he  is  quick  in  apprehension,  firm  and 
immovable  in  his  convictions,  but  conservative  and 
judicial  in  reaching  them;  he  has  a retentive 
memory,  a reserved  courage  and  an  imperturbable 
temper;  he  is  terse,  direct,  clear  and  concise  in 
statement,  and  especially  is  an  adept  at  translating 
every  technical  term  into  words  and  phrases  clearly 
intelligible  to  every  juryman;  he  abhors  garrulity, 
flippancy  and  trickery;  he  aims  to  be  candid  and 
strives  to  be  impartial,  disinterested  and  free  from 
bias. 

Sometimes,  though  very  rarely,  one  sees  a phy- 
sician on  the  witness-stand  who  represents  faith- 
fully all  these  requirements;  he  is  the  object  of 
our  emulation  and  envy.  Much  more  commonly, 
however,  medical  testimony  illustrates  character- 
istics quite  in  contrast  with  the  ideal.  The 
physician  whose  methods  on  the  witness-stand 
we  do  not  desire  to  copy  is  garrulous,  affected, 
pedantic,  flippant,  ready  to  engage  in  controversy, 
dogmatic,  and  above  all  saturated  with  partisan- 
ship. Of  all  these  faults,  the  last  is  the  most 
common  and  conspicuous  and  the  one  which  has 
brought  the  greatest  reproach  on  medical  men  as 
witnesses;  it  is  this  which  has  led  judges  on  the 
bench  to  disparage  and  belittle  medical  experts; 
which  has  caused  writers  on  jurisprudence  to  dis- 
credit their  value;  and  which,  in  practice,  has 
induced  juries  to  ignore  their  testimony  altogether 
in  trying  to  reach  a verdict.  But  while  admitting 
that  partisanship  is  a too  common  element  of  medi- 


68 


THE  MEDICAL  PROFESSION 


cal  evidence,  I insist  that  it  is  an  evil  for  which 
medical  men  should  not  be  held  responsible.  It 
is  the  unavoidable  and  legitimate  fruit  of  the  con- 
ditions under  which  the  modern  practice  of  the  law 
is  pursued.  The  physician  in  the  sick-room  does 
not  exhibit  the  disposition  here  depicted;  but  place 
him  under  the  novel  and  subtle  influences  of  the 
court-room  and  he  becomes  another  creature.  In 
this  new  relation,  he  inevitably  finds  himself 
subject,  in  greater  or  less  degree,  to  peculiar  temp- 
tations. For  nearly  all  that  is  objectionable  in  the 
exhibitions  of  partisanship  made  by  medical  wit- 
nesses, I blame  the  methods  under  which  such 
experts  are  employed;  the  system,  and  not  the 
witness,  is  at  fault.  A case,  for  example,  occurs 
which  offers  an  opportunity  for  the  use  of  medical 
testimony.  You  receive  a politely  insinuating 
invitation  from  the  counsel,  to  serve  as  an  expert. 
You  do  not  inquire  very  closely  into  the  grounds 
that  have  determined  the  selection;  you  feel  com- 
plimented, at  all  events,  and  you  consent  to  be 
retained.  Now,  having  fully  committed  yourself 
to  the  service  of  your  employer,  your  independence 
is  almost  necessarily  laid  aside.  You  are  expected 
in  preparing  for  the  trial  to  develop  all  the  ele- 
ments in  the  case  favorable  to  your  employer’s 
side  only.  The  advocate  consults  with  you,  nour- 
ishing in  you  a controlling  partiality,  and  doing 
all  in  his  power  to  stimulate  a cordial  interest  in 
his  client’s  cause.  The  witness  thus  appproaches 
the  trial,  expert  chiefly  as  a partisan  medical  ad- 
vocate. Against  the  insidious  influences  which 


AND  THE  COMMONWEALTH. 


69 


promote  this  surrender  of  mental  equipoise,  few 
physicians  could  successfully  defend  their  judg- 
ment. Ordinarily,  the  exigencies  of  his  service, 
his  sympathy  with  the  client’s  claim,  his  sense  of 
obligation  to  fulfil  an  implied  contract,  all  draw 
the  medical  witness  from  a judicial  independence. 

Then  at  the  trial  itself,  still  more  compulsory  in- 
fluences encompass  him.  He  now  finds  himself  in 
the  arena,  marshalled  with  others  to  defend  his  own 
side,  to  defeat  the  opposing  side.  He  is  harassed 
by  the  technical  limitations  of  the  rules  of  evi- 
dence. Through  the  inability  of  lawyers  to 
conduct  acceptably  an  examination  on  medical 
subjects,  he  is  made  inadvertently  to  state  views 
which,  under  other  circumstances,  he  would  not 
think  of  supporting.  The  leading  questions  with 
which  the  cross-examination  bristles  ensnare  him 
into  unexpected  and  embarrassing  corners,  out  of 
which  the  easiest  way  lies  through  extraordinary 
expositions  of  medical  knowledge.  Professional 
pride  compels  him  to  defend  stoutly  his  position,  a 
retreat  from  the  ground  being  deemed  worse  than 
the  blunder  which  took  him  there.  First,  last  and 
always,  he  is  to  shape  his  course  with  the  single 
aim  of  helping  to  win  a verdict  favorable  to  his 
side,  and  of  earning  thereby  the  dollars  which  are 
his  reward  for  faithful  service. 

It  is  cause  for  regret  that  the  English  and 
American  methods  of  employing  medical  experts 
have  fallen  away  so  far  from  the  primitive  practice. 
Under  the  Roman  law,  the  physician  in  court  as 
an  expert  witness  held  a relation  of  exceptional 


70 


THE  MEDICAL  PROFESSION 


honor  and  responsibility;  he  was  amicus  curias, 
an  independent  and  unprejudiced  interpreter  of 
medical  facts.  He  was  summoned  to  instruct  the 
court  and  jury  in  matters  of  which  they  had,  pre- 
sumably, an  imperfect  knowledge.  His  duty  was 
to  aid  in  establishing  the  whole  truth.  In  such 
a position,  a physician  occupied  an  office  of  honor. 
He  was  chosen  because  of  his  fitness;  he  truly 
represented  his  profession.  And  in  still  more 
recent  times,  even  down  to  the  present  period,  the 
system  in  vogue  in  France  and  Germany  is  far 
in  advance  of  our  own  in  securing  the  end  which 
the  theory  of  medical  expert  testimony  designs. 
Either  under  the  German  plan  which  provides  for 
official  experts,  or  under  the  French  method  which 
leaves  the  choice  and  employment  of  the  expert  to 
the  discretion  of  the  court,  the  medico-legal  re- 
sults are  admirable  and  in  striking  contrast  with 
the  procedures  with  which  we  are  familiar,  and 
which  permit  a suitor  to  come  into  court  with  a 
company  of  medical  Hessians  enlisted  to  defeat 
his  opponent. 

Now,  what  can  be  done — and  this  is  the  one 
important  question  for  consideration — to  modify, 
or,  if  need  be,  to  revolutionize  these  unsatisfactory 
methods?  Without  pausing  to  review  the  various 
propositions  that  have  been  made  from  time  to 
time  for  accomplishing  this  end,  I remark  at  the 
outset  that,  as  may  readily  be  inferred  from  what 
has  been  presented,  the  first  thing  to  be  desired  is 
the  removal  of  the  medical  witness  from  the  influ- 
ences and  temptations  of  partisanship;  he  must  be 


AND  THE  COMMONWEALTH. 


71 


lifted  far  above  the  plane  of  bias.  This  is  the 
corner-stone  on  which  the  entire  new  structure 
must  be  built,  if  the  evils  of  which  we  complain  at 
present  are  to  be  eliminated.  Other  provisions  are 
mainly  correlative  and  subordinate  details  growing 
out  of  this. 

To  secure  this  end,  the  best  way,  because  it  is 
the  most  in  accord  with  American  notions  of  fair- 
ness, is  that  which  would  provide  that  the  medical 
expert  in  any  action  at  law,  civil  or  criminal, 
should  be  the  choice  of  the  two  parties  interested 
in  the  litigation;  or,  in  the  event  of  their  disagree- 
ment or  neglect,  the  choice  of  the  court.1  Grant 
this  primary  principle,  and  all  other  secondary 
questions  and  exigencies  will  find  comparatively 
easy  adjustment.  The  advantages  of  such  an  in- 
novation, both  theoretical  and  practical,  are  too 
plain  to  be  mistaken.  Theoretically,  such  a plan 
would  secure  experts  in  fact  as  well  as  in  name, 
since  it  would  obviously  be  for  the  interest  of  all 
concerned  that  the  best  available  medical  judg- 
ment should  be  obtained  upon  technical  questions 
involved  in  the  issue  on  trial.  Instead  of  the 
present  deplorable  exhibitions,  so  amusing  to 
lawyers,  so  discreditable  to  our  profession,  so 
subversive  of  justice,  we  should  see  a true  repre- 
sentative of  medical  science,  selected  because  he 
is  recognized  as  such,  appearing  in  court  as  the 
interpreter  of  the  medical  data  established  in  the 


1 The  practicability  of  this  method  was  demonstrated  by  the  New 
Hampshire  Supreme  Court  in  a case  which  occurred  during  the  prepara- 
tion of  this  discourse. 


72 


THE  MEDICAL  PROFESSION 


evidence.  We  should  see  him  the  impartial  ex- 
ponent of  the  most  recent  authoritative  advances 
in  science,  as  well  as  of  the  settled  principles 
which  are  the  fruit  of  long  experience.  We 
should  see  him,  with  the  same  judicial  indepen- 
dence which  the  presiding  justice  himself  must  dis- 
play, passing  judgment,  without  fear  or  favor,  on 
matters  which  legitimately  fall  to  his  office  as  an 
expert.  There  would  be  little  danger  that  this 
altogether  honorable  function  would  fall  into  un- 
worthy hands  under  such  a system;  the  man 
chosen  would,  from  the  necessities  of  the  case,  be 
well  known  as  the  possessor  of  knowledge  fitting 
him  to  comprehend  and  to  elucidate  the  points 
presented  in  the  testimony.  The  man  of  pro- 
nounced and  peculiar  views,  the  man  of  hobbies, 
would  not  be  sought;  his  judgment  is  already 
discounted. 

In  practice,  the  expert  thus  selected  would 
make  such  investigations  as  the  case  demanded, 
would  listen  to  all  the  testimony,  and  at  the  proper 
time  would  report  his  conclusions,  either  as  oral 
evidence  or,  preferably,  in  the  form  of  a written 
statement.  Here  wrould  occur  au  opportunity  for 
professional  distinction.  The  name  of  medical 
expert,  instead  of  conveying  with  it  a questionable 
flavor,  would  become  a term  of  good  repute,  at- 
tracting rather  than  repelling  the  master-minds 
in  our  profession ; while  the  many-sided  questions 
presented  in  legal  suits  and  actions  would  offer 
occasions  for  medico-legal  reports  such  as  have 
made  Germany  and  France  confessedly  the  leaders 
in  forensic  medicine. 


AND  THE  COMMONWEALTH. 


73 


But  at  just  this  point,  the  typical  barrister,  with 
a gesture  and  in  tones  familiar  to  those  of  us  who 
have  ever  served  as  witnesses,  says:  "Stop  a mo- 
ment! I object!”  And  when  asked  to  state  his 
objection,  he  replies:  "I  object  because  such  a 
scheme  would  interfere  with  the  constitutional  right 
of  the  individual  citizen  to  defend  his  life,  person, 
property  or  character  by  producing  ' all  proofs  that 
may  be  favorable  to  him.’  I object  because  when 
I undertake  to  prosecute  a suit  at  law  or  when  I 
am  engaged  to  defend  a client,  I wish  to  know 
precisely  what  the  evidence  favorable  to  my  cause 
is  to  be;  I have  no  intention  of  remaining  wholly 
ignorant  of  the  medical  conclusions  up  to  the  time 
of  the  expert’s  appearance  in  court.  Moreover, 
I object  because  I will  not  waive  my  control  over 
all  accessible  proofs  that  will  aid  my  purpose.  I 
am  in  court  theoretically  to  see  that  justice  is  ad- 
ministered; but  I am  here  in  reality  to  do  what  I 
can  to  win  a verdict  for  my  client,  and  I wish,  in 
order  to  secure  that  end,  to  employ  all  lawful 
means,  including  medical  evidence  of  my  own 
choosing;  and  if  this  evidence  is  skilfully  warped 
and  stretched  to  meet  well  the  exigencies  of  my 
claim,  it  will  be  so  much  the  more  useful  and  ac- 
ceptable.” This  is  the  lawyer’s  view  of  the  matter; 
and  it  is  this  spirit  which  has  hitherto  stood  as  an 
insuperable  obstacle  in  the  way  of  a much  needed 
reform  of  the  present  methods.  It  is  a purely 
selfish  spirit  held  by  a large  part  of  the  legal  pro- 
fession, but  repudiated  by  a few  conspicuous  and 
honorable  exceptions.  It  will  continue  to  offer 


74 


THE  MEDICAL  PROFESSION 


objections  to  the  advent  of  better  procedures, 
however  fully  it  may  have  been  demonstrated  that 
they  are  entirely  feasible  and  satisfactory  in  prac- 
tice. 

Meanwhile,  we  as  physicians  have  a plain  re- 
source. When  required  to  discharge  the  duty  of 
medical  witnesses,  let  us  diligently  aim  to  illus- 
trate a high  standard.  Let  us  avoid  well-recog- 
nized errors  to  the  utmost  of  our  ability.  Let  us 
decline  to  act  simultaneously  as  medical  advocates 
and  medical  witnesses.  Let  us  endeavor  to  give 
our  testimony  with  the  same  candor  and  the  same 
independence  which  would  characterize  our  state- 
ments if  instead  of  the  peculiar  environment  of  a 
court  of  justice,  we  were  in  the  presence  of  an 
audience  of  friendly,  but  critical,  medical  asso- 
ciates. Difficult  as  such  a duty  is,  it  is  not  im- 
possible of  performance. 

IV.  This  review  of  the  relationship  which  our 
profession  holds  toward  the  commonwealth  will  be 
incomplete  without  some  reference,  in  conclusion, 
to  a still  higher  obligation  resting  on  us.  It  is  the 
obligation  of  loyal  citizenship,  involving  duties 
superior  to  any  of  those  which  I have  undertaken 
to  discuss.  Men  sometimes  speak  of  citizenship 
as  a privilege,  to  be  used  or  laid  aside  with  easy 
indifference.  Properly  considered,  it  is  much 
more  than  this;  it  is  a living  trust,  a priceless 
heritage,  involving  duties  as  well  as  rights.  In 
the  presence  of  educated  physicians,  there  is  no 
need  to  emphasize  this.  They  recognize  their 
obligation  and  their  opportunity, — their  personal 


AND  THE  COMMONWEALTH. 


75 


obligation  of  earnest  loyalty,  their  opportunity, 
through  the  place  they  hold  in  the  community  and 
in  the  household,  to  raise  the  level  of  civic  virtue 
by  precept  and  example.  To  them,  the  service  to 
the  State  which  the  best  type  of  citizenship  pre- 
sents is  not  expressed  in  political  zeal,  in  greed 
for  office,  or  in  an  active  partisanship  which  in 
medical  men  is  always  especially  offensive  and 
objectionable.  It  means,  on  the  other  hand,  abso- 
lute independence  of  all  machine  methods  in 
politics.  It  leaves  practical  politics  to  ” profes- 
sional ” politicians,  but  it  never  fails  or  omits  to 
register  its  convictions  through  the  agency  of  the 
ballot.  It  is  found  in  sympathy  with  all  reason- 
able methods  of  moral  and  social  reform,  but 
avoids  impracticable  radicalism  and  sensationalism. 
It  stands  for  popular  education  and  defends  the 
public  schools  from  all  assaults,  overt  or  insidious, 
that  would  impair  their  usefulness  and  freedom. 
It  insists  on  fidelity  and  honesty  in  official  station. 
It  aims  to  aid  in  shaping  a healthy  public  opinion 
upon  all  matters  pertaining  to  the  welfare  of  society 
and  the  elevation  of  mankind.  It  protests  against 
the  fastidious  indifference  which  too  often  marks 
the  attitude  of  educated  men  toward  civic  affairs. 
When  the  nation’s  life  is  assailed,  it  is  found  at 
the  front  represented  by  such  men  as  Derby  and 
Otis,  and  Sargent,  and  Hooker,  and  Bell  and  Ly- 
man, adding  new  lustre  to  the  proud  title  of 
Massachusetts  volunteers. 

Fellows,  these  closing  years  of  the  nineteenth 
century  are  making  an  extraordinary  record  of 


76 


THE  MEDICAL  PROFESSION. 


progress  in  all  that  pertains  to  the  science  and  the 
art  of  medicine.  The  brilliant,  almost  audacious, 
achievements  of  modern  surgery  and  the  benefi- 
cent triumphs  of  rational  and  preventive  medicine, 
inspire  our  admiration  and  stimulate  our  zeal.  In 
the  rapid  movements  of  our  noble  profession  along 
all  the  lines  of  advanced  development,  we  find  it 
difficult  to  keep  our  leaders  in  sight;  star-eyed 
science  certainly  does  not  encourage  loitering  on 
the  part  of  her  votaries.  But  while  we  strive  to 
keep  in  touch  with  this  spirit  of  progress  in  all 
that  belongs  to  our  domain  as  physicians,  let  us 
not  forget  the  claim  which  the  commonwealth  may 
properly  make  upon  us  as  citizens.  Let  us  seek 
earnestly,  each  in  his  own  community,  to  illustrate 
the  highest  ideals  of  loyalty  and  fidelity.  So  may 
we,  in  a double  sense,  as  physicians  and  as  citi- 
zens, discharge  our  duty  to  humanity. 


